Edited by Sahid, Team Member, LawDiktat.
In India, minorities are consistently disregarded, although there are now several policies in place to improve their situation. To safeguard minorities, the government has created several programs and legislation. Minority, which means “small in number,” is derived from the Latin word “minor,” which is combined with the suffix “ity.” Minorities experienced a variety of issues, including issues with receiving protection, issues with racial tensions and riots, issues with a lack of representation in the political and civil services, and issues with separatists.
Failure to adhere to secularism in relation to the creation of a single civil code is another issue. In India, minority rights guard against discrimination based on a person’s ethnicity, culture, language, or religion. Minority members must be able to use their own names, study and utilize their native tongues, and openly express their identity. Therefore, minority rights guarantee non-discrimination, protection from violence based on identity, equality before the law, participation in political and public life, and opportunities for cross-border and intrastate collaboration with other communities and organizations. The fundamental component of human rights is the right of minorities. They encourage respect for variety and tolerance. In India, the majority consists of Hindus, their population includes more than 80% of India’s population. The minority population consists of Muslims, Christians, Sikhs, and Jains. Following are some of the articles of the Constitution relating to the protection of minority rights:
Article 14 of the Constitution talks about equality before the law for all the citizens of India without any discrimination. It means all the citizens of India regardless of their religion, caste, creed, race, and colour will be treated equally before the law. This ensures that minorities also have equal representation before the law.
There are two articles under cultural educational rights in the Indian Constitution- Article 29 and Article 30. Article 29 of the Constitution states the protection of interests for minorities. Its clause (1) states that any group living within the jurisdiction of India is entitled to preserve and promote its own language, script or literature, and culture. Clause (2) of it prohibits denial of admission to educational institutions which are aided by the state on the ground of race, caste, and religion or language protection.
Article 30(1) gives a provision to the minority communities to establish and administer an educational institute of their choice for the protection of their culture and heritage. According to Article 30(2), the government should not discriminate against any educational institution run by any minority group regardless of religion, or language, while giving aid.
Other than these there are various commissions for safeguarding minorities:
The National Commission for Minorities has been established as a statutory body under the National Commission for Minorities Act, of 1992. As per Section 9(1) of the Act, the Commission is required to perform functions that include monitoring of the working of the safeguards for minorities provided in the Constitution and in laws enacted by Parliament and the State Legislatures; making recommendations for effective implementation of safeguards for the protection of the interests of minorities by the Central Government or the State Governments, looking into specific complaints regarding deprivation of rights and safeguards of minorities and taking up such matters with the appropriate authorities, etc.
The NHRC, India is a statutory body constituted under the Protection of Human Rights Act, 1993, and is mandated, to enquire suo-motu or on a petition presented to it regarding violations of human rights, review the safeguards provided under the Constitution and domestic laws, study international human rights treaties, promote research in the field of human rights, spread human rights literacy among various sections of society, and synergise the efforts of NGOs and institutions working in the field of human rights. It also has the authority to grant interim relief, recommended payment of compensation or damages and the initiation of proceedings for prosecution or disciplinary action against errant public officials.
Authored by Ishani Shome, Legal Intern, LawDiktat
Edited by Sahid, Team Member, LawDiktat
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The Armed Forces Tribunal is a military tribunal formed under The Armed Forces Tribunal Act 2007 (established on 08 Aug 2009) and is empowered to adjudicate appeals against any order, decision, finding or sentence passed by a Court-Martial or any matter connected. The Armed Forces Tribunal adjudicates on disputes and complaints with respect to commission, appointments, enrolment and conditions of service in respect of persons subject to The Army Act 1950, The Air Force Act 1950, and The Navy Act 1957.
The scope of the act deals with service matters in relation to all persons subject to The Army Act 1950, The Air Force Act 1950, and The Navy Act 1957, including their dependents, heirs and successors, in so far as they relate to service matters. The Service matters mean all matters relating to the conditions of their service and shall include:
It shall not include matters relating to orders issued under section 18 of The Army Act 1950, The Air Force Act 1950, and The Navy Act 1957.
Section 18 in The Army Act, 1950:
Tenure of service under the Act. Every person subject to this Act shall hold office during the pleasure of the President. Paramilitary forces are not considered to be a part of the Armed Forces Tribunal jurisdiction. AFT will exercise powers of all courts except the Supreme Court or High Court exercising jurisdiction under Article 226 and 227 of the Constitution of India.
The tribunal is composed of:
The principal bench of the Armed Forces Tribunal is located in New Delhi.
Armed Forces Tribunal has regional benches located in the cities mentioned below:
Chandigarh – Punjab, Haryana, Himachal Pradesh and Chandigarh
Lucknow – Uttar Pradesh and Uttarakhand
Kolkata – West Bengal, Bihar, Jharkhand, Orissa and U.T. of Andaman and Nicobar Islands
Guwahati – North-East Region
Chennai – Tamil Nadu, Andhra Pradesh and Pondicherry
Kochi – Kerala, Karnataka and Lakshadweep
Mumbai – Maharashtra and Gujarat
Jaipur – Rajasthan
Jabalpur – Madhya Pradesh and Chhattisgarh
Jammu – Jammu and Kashmir
Regional benches of Chandigarh and Lucknow have three benches each while the remaining have a single bench.
For the purpose of adjudicating an application, The Tribunal shall have the same powers as are vested in a Civil Court under CPC, 1908 while trying a suit in respect of matters namely summoning, receiving and production of documents, evidence on affidavit, requisition of any public document under section 123 and 124 of the Indian Evidence Act, issuing commissions, reviewing its own decisions, dismissing, setting aside any other order etc.
The Tribunal shall decide both questions of law and facts.
All proceedings before the Tribunal shall be deemed to be Judicial proceedings.
The Tribunal shall exercise power of appeal against any order, decision, finding or sentence passed by a court martial or any matter where the findings of the court martial is legally not sustainable, involves wrong decision on a question of law or any material irregularity.
The Tribunal shall have power to grant bail to any person in military custody.
The Tribunal may allow an appeal against conviction.
Substitute the findings of the court martial and pass a sentence afresh.
Remit the whole or any part of the sentence, enhance, or mitigate the punishment found to be excessive, illegal or unjust.
Suspend a sentence of imprisonment.
Power of quashing a conviction by a court martial or ordering re-trial by a court martial.
The Tribunal is deemed to be a criminal court for the purposes of the following
Section 175 of IPC – Omission to produce documents or electronic records.
Section 178 of IPC – Refusing oath or affirmation
Section 179 of IPC – Refusing to answer public servant
Section 180 of IPC – Refusing to sign statement
Section 193 of IPC – Punishment for false evidence
Section 195 of IPC – Giving or fabricating false evidence
Section 196 of IPC – Using evidence known to be false
Section 228 of IPC – Interruption to any public servant
Chapter VVXI of CRPC Offences Affecting Administration of Justice
TERRITORIAL JURISDICTION
The Territorial jurisdiction of the Regional Benches shall flow from the administrative orders issued by the Government of India from time to time. The present the States and Bench-wise territorial jurisdiction are explained above at Para 11.
Any person who is guilty of Contempt of the Tribunal Shall on conviction, be liable to suffer imprisonment which may extend upto three years. The provisions of Section 14,15,17, 18, and 20 of Contempt of Courts Act 1971 shall apply for trying of offences of contempt of the Tribunal under the following circumstances:
The Tribunal shall not be bound by the procedure laid down in the CPC 1908, but shall be guided by the principles of natural justice. The order of the Tribunal disposing of an application shall be final and shall not be called in question in any Court and such order shall be executed accordingly. The Central Government may make rules for the purpose of carrying out the provisions of this act on the basis of which Army, Navy and Air Force has formed the rules.
Subject to the provisions of section 31, an appeal shall lie to the Supreme Court against the final decision or order of the Tribunal (other than an order passed under section 19): Provided that such appeal is preferred within a period of ninety days of the said decision or order: Provided further that there shall be no appeal against an interlocutory order of the Tribunal. An appeal shall lie to the Supreme Court as of right from any order or decision of the Tribunal in the exercise of its jurisdiction to punish for contempt: Provided that an appeal under this sub-section shall be filed in the Supreme Court within sixty days from the date of the order appealed against.
Pending any appeal under sub-section (2), the Supreme Court may order that
There are various judgments of Hon’ble Supreme court and Hon’ble High courts regarding the power of Judicial review of High courts over AFT orders. There are various contradictory judgments on the subject. Two of the landmark and latest judgements on the subject are appended below for information.
In the case of Ram Harsh v. UOI, it was clarified that the Armed Forces Tribunal Act, 2007 does not strip the High Court of its power of judicial review under Article 226 of the Constitution. The jurisdiction granted to the High Court under Article 226 is extraordinary and discretionary in nature. It is important to note that the powers exercised by the High Court under Articles 226 and 227 are constitutional powers that cannot be excluded by legislation.
The power of judicial review vested in the High Court under Article 226 and 227 of the Constitution is an integral part of the basic structure of the Constitution. Judicial review in India encompasses three main aspects: review of legislative action, review of judicial decisions, and review of administrative action.
Therefore, judgments that restrict the High Courts from exercising judicial review over Armed Forces Tribunal (AFT) orders go against the established principles. The High Court retains the authority to review AFT orders under its constitutional powers and provide necessary oversight.
In the case of Major Nishant Kaushik vs Union of India and Ors. on 11 October 2022, the role of the High Court was clarified regarding its jurisdiction over decisions or orders made by the Tribunal. The High Court does not function as an appellate court in such cases but rather exercises its supervisory jurisdiction. When reviewing the judgment or order of the Tribunal, the High Court performs the power of judicial review, focusing on correcting errors of jurisdiction or errors that are evident on the face of the record, or when the Tribunal acts unlawfully. It is important to note that the writ jurisdiction of the High Court cannot be used as a disguised form of an appeal.
The scope of an appeal before the High Court from a final decision or order of the Tribunal is extremely limited, and it is restricted to the power of judicial review. This power is exercised by the High Court when examining the decision-making process or when correcting errors of jurisdiction or errors that are apparent on the face of the record, or when the Tribunal acts unlawfully. As a result, in most cases, no appeal from a final decision or order of the Tribunal can be filed before the High Court. The only recourse to challenge the final decision of the Tribunal lies with the Apex Court, the highest court of the country.
In conclusion, the recent judgment in the case of Balakrishna Ram Vs Union of India, Civil Appeal No 131/2020, has shed light on the jurisdiction and appellate process of the Armed Forces Tribunal in India. The court rejected the notion of transferring an intra-court appeal from a single judge’s judgment in the High Court to a Division Bench of the Tribunal. This decision emphasizes the importance of maintaining a proper balance and composition within the Tribunal, with the presence of both retired judges and retired Armed Forces officials.
While it is essential to prevent a blanket ban on the exercise of jurisdiction by the High Courts, as ruled in the L. Chandra Kumar case, it is equally important to uphold the objective of establishing the Armed Forces Tribunal. This objective primarily aims to alleviate the burden on High Courts in matters related to the Armed Forces. Allowing contradictory judgments from various High Courts to review Armed Forces Tribunal orders would undermine the very intent of the Act.
In light of these considerations, it is my opinion that the review of Armed Forces Tribunal orders should be limited to the highest court of the country, the Apex Court. This approach ensures consistency, uniformity, and adherence to the objectives behind the establishment of the Tribunal. By doing so, the burden on High Courts can be effectively reduced, and the intended purpose of the Armed Forces Tribunal can be realized.
Authored by Venkatesh ANS, Legal Intern, LawDiktat
Edited by Sahid, Team Member, LawDiktat
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The Royal Indian Air Force was established on 08 Oct 1932 as an auxiliary of the Royal Air Force. To commemorate the formation day of the Royal Indian Air Force, 8th October is declared as Air Force Day. After India became a Republic on 26th January 1950, the Indian Air Force dropped its prefix ‘Royal’. Subsequently, an act to consolidate and amend the law relating to the Air Force was enacted by the Parliament of India on 22 Jul 1950 shortly called as Air Force Act 1950.
Accordingly in the exercise of the powers conferred by Section 189 of the Air Force Act 1950, the Central Government has made rules called ‘The Air Force Rules 1969’. Thereafter to meet the requirement of authoritative commentary on the provisions of the Air Force Act, 1950 and the Air Force Rules 1969, a Manual of Air Force Law was brought out in 1988 which primarily constitutes the Air Force Law. The Manual of Air Force Law is prepared considering various amendments to the Air Force Rules 1969 and also various landmark judgments of the Hon’ble Supreme Court on the Air Force Act 1950.
The Air Force being a special law has extraterritorial application in as much as a person subject to it continues to be so subject at all times irrespective of the place where he is serving; whether he is in India or elsewhere.
The persons who are subject to Air Force Act 1950 are as follows:
Officers and Warrant Officers of the Air Force.
Persons enrolled under this Act Airmen and Non-Combatants
Persons not otherwise subject to Air Force Law and who are on active service as specified by the Central Government.
Laws pertaining to Air Force personnel hold a unique position as they can supersede the Fundamental Rights guaranteed by the Indian Constitution. While Fundamental Rights are available to all citizens of India, there are certain reasonable classifications where restrictions on these rights may be imposed on specific individuals. Under Article 33 of the Indian Constitution, the Parliament has the authority to modify the application of Fundamental Rights to members of the Armed Forces. This empowers the Parliament to determine the extent to which these rights are applicable to Armed Forces personnel. Additionally, Article 34 of the Indian Constitution allows for specific restrictions on Fundamental Rights when martial law is in force in any area. Hence, through Article 33 and Article 34, Parliament is empowered to restrict, modify, or even suspend certain Fundamental Rights for members of the Armed Forces. Notably, these restrictions primarily pertain to the provisions outlined in Articles 14, 15, and 19 of the Indian Constitution. Consequently, the provisions of the Air Force Act 1950 cannot be challenged solely on the grounds that they infringe upon Fundamental Rights. These acts are enacted by Parliament within its legislative jurisdiction, as provided by Article 33 of the Constitution of India.
The Air Force Act 1950 consists of 194 sections and is divided into 16 chapters.
The applicability of Article 33 of the Indian Constitution is found in section 21 of the Air Force Act which empowers the Central Government to make rules restricting certain Fundamental Rights.
The Air Force Act is mostly a disciplinary code and ensures that the will of the commander is put into effect. The Act broadly deals with two provisions.
Firstly it recognizes certain offences committed by the persons subject to this Act.
Secondly, it lays down procedures regarding enrollment into the force, their arrest and court-martial procedures.
Offences under the Air Force Act: A wide range of offenses is punishable under the act, indicating discipline among the force. Some of the major offences are :
Section 34 : Offences in relation to the enemy, committed treacherously, intentionally with knowledge.
Section 35: Offences in relation to the enemy committed negligently or without due authority.
Section 37 : Mutiny
Section 38: Desertion and aiding desertion
Section 40: Striking or threatening a superior officer
Section 57: Falsifying official documents and false declaration
Section 64: Disobedience of lawful command.
Enrollment :
Chapter III (Section 10-17) deals with the commission, Appointment, and Enrollment of personnel into the Air Force. The commission is related to Officers, Enrollment for Airmen/NCs( E), and appointment for Civilians.
Court Martial
A Court Martial is a legal proceeding or a trial conducted for the personnel belonging to Air Force Act. Court Martial is a tribunal. Section 109 of the Act determines three different kinds of Court martial.
(i) General Court Martial
(ii) District Court Martial
(iii) Summary General Court Martial
Armed Forces are deployed in counter insurgency / terrorist operations when all other forces available to the State have failed to bring the situation under control. Armed forces operating in such an environment require certain special powers and protection in the form of an enabling law.
The Armed Forces Special Powers Act (AFSPA) was enacted by the Parliament and confers certain special powers on members of the Armed Forces (military forces, air forces operating on ground as land forces and any other armed forces of the Union (CRPF, BSF, ITBP etc)for carrying out proactive operations against the insurgents in a highly hostile environment. AFSPA comes into effect only in Disturbed Areas. Some of the important provisions are:
Section 3 It lays down the authority which has power to declare areas to be disturbed. These authorities are the Central and the State Governments.
Section 4 It gives the Army (including Air Force & Navy) powers to search premises and make arrests without warrants, to use force even to the extent of causing death, destroy arms / ammunition dumps, fortifications/ shelters / hideouts and to stop, search and seize any vehicle.
Chapter VII of IPC 1860 deals with offenses relating to the Air Force
Section 131 Abetting Mutiny, or attempting to seduce an Airman from his duty.
Section 132 Abetment of mutiny, if mutiny is committed in consequence thereof.
Section 133 Abetment of assault by Airman on his superior officer.
Section 134 Abetment of such assault, if the assault is committed.
Section 135 Abetment of desertion of Airmen.
Section 136 Harbouring Deserter.
Section 137 Deserter concealed
Section 138 Abetment of act of insubordination by Airmen.
Section 139 Persons subject to certain acts
Section 45: Notwithstanding anything contained in sections 41 to 44 (both inclusive), no member of the Armed Forces of the Union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the Central Government.
Sections 130 to 132 The procedure for use of Armed Forces to disperse a mob bent on violence is provided in Sections 130 to 132 of the Code of Criminal Procedure (CrPC) of 1973.
Section 475: The Central Government may make rules consistent with this Code and the Army Act, 1950 (46 of 1950 ), the Navy Act, 1957 (62 of 1957 ), and the Air Force Act, 1950 (45 of 1950 ), and any other law, relating to the Armed Forces of the Union, for the time being in force, as to cases in which persons subject to military, naval or air force law, or such other law, shall be tried by a Court to which this Code applies or by a Court- martial; and when any person is brought before a Magistrate and charged with an offence for which he is liable to be tried either by a Court to which this Code applies or by a Court- martial, such Magistrate shall have regard to such rules, and shall in proper cases deliver him, together with a statement of the offence of which he is accused, to the commanding officer of the unit to which he belongs, or to the commanding officer of the nearest military, naval or air force station, as the case may be, for the purpose of being tried by a Court- martial.
Every Magistrate shall, on receiving a written application for that purpose by the commanding officer of any unit or body of soldiers, sailors or airmen stationed or employed at any such place, use his utmost endeavors to apprehend and secure any person accused of such offence.
A High Court may, if it thinks fit, direct that a prisoner detained in any jail situated within the State be brought before a Court- martial for trial or to be examined touching any matter pending before the Court- martial.
Order V Rule 28: The summons process is mentioned in Order V Rule 28 for servicing summons to soldiers, sailors or Airmen. Rule 28 of Order V states that the summons of service shall be sent to the Commanding Officer along with the Copy to be retained by the Defendant. The suit filing process against the armed forces personnel is the same as that of the regular suit but the only difference is of the service process and the privileges
According to Section 28 of the Air Force Act, no arms, clothes, equipment, necessaries, or animals used by any person for the performance of his duties may be confiscated nor can his pay, allowances, or any part thereof may be attached by the direction of any civil or revenue court or revenue officer to the satisfaction of any decree or order that may be enforced against him.
According to Section 29 of the Air Force Act, any person who belongs to the armed forces is not liable to be arrested under any process issued by the authority of any civil, revenue court or revenue officer. In case, if an arrest is made then the revenue officer may discharge such person by awarding reasonable costs to the Complaint concerned on receipt of a complaint by such person or his superior to that effect. Costs can be recovered in the same way as if they had been awarded by a decree against the individual obtaining the processes and no court fees are required to be paid for the recovery of such costs.
According to Section 30 of the Air Force Act, 1950 no presiding officer or member of a Court-martial, no Judge advocate, no party to any proceedings before a Court-martial, or his legal practitioner or representative, and no witness acting in obedience to a summons to a Court-martial while proceeding or returning from the Court-martial, may be detained in civil or revenue proceedings. If such a person is arrested under any such practice, he can be discharged by order of the Court-martial.
According to section 32 of the Air Force Act, 1950 any person of the armed forces is subject to obtain the certificate from the proper military/ Air Force authority to grant leave of absence or the leave applied by him to prosecute any suit or defend any such suit. The Court shall on the application of such a person may keep it for the hearing and final disposal of suit within the period of the leave so granted.
Civil courts should dispose of all suits for prosecution or defense, of officers, soldiers, or reservists who have received leave of absence as quickly as is compatible with the administration of justice, irrespective of the order in which they are recorded.
In this judgment, the Supreme Court arrived at a conclusion that A suo-motto declaration can be made by the Central government; however, it is desirable that the state government should be consulted by the central government before making the declaration.
In this judgment, the Supreme Court arrived at a conclusion that no blanket immunity will be available to the armed forces personnel for the unjustified death.
The legal framework governing the Indian Air Force is primarily based on the Air Force Act 1950, which acts as the main source of Air Force Law. This Act is further supplemented by subsequent Manuals, Rules, and Regulations that have been issued and updated over time, subject to amendments as necessary.
In addition to the Air Force Act 1950, the Air Force also relies on two additional forms of guidance to specify and delegate the content and subjects covered by the Act. These include Air Force Orders and Air Force Instructions.
Air Force Orders are issued on specific subjects and carry the signature of the Chief of the Air Staff. They primarily focus on internal policy matters that concern Air Force personnel. On the other hand, Air Force Instructions are issued by the Ministry of Defence and cover various policy matters that affect the Air Force as a whole.
It is worth noting that the Air Force Act 1950 is the primary authority and legal framework for the Indian Air Force. There are no other Acts or laws that unilaterally apply to the Indian Air Force, apart from the ones discussed above. The Act, along with the subsequent Manuals, Rules, and Regulations, form the basis for the operations, policies, and internal governance of the Indian Air Force.
Authored by Venkatesh ANS, Legal Intern, LawDiktat
Edited by Sahid, Team Member, LawDiktat
]]>Laws that are particular to a person and their religion are personal laws. It can be based on legislation or customary laws. Hindu personal laws are one of the most ancient laws that are prevalent in today’s era. On the other hand, the Muslim Personal Law 1937 Act in India passed in 1937. This Act deals with marriage, succession, and inheritance issues in Islam, but after the demarcation of Pakistan and India, both countries make their own personal laws. Pakistan makes its personal laws according to his religion and custom, while India practises the common civil code irrespective of its religion. Later, India makes drastic amendments to Hindu personal law and also extends its application to the followers of other religions too. The deep comparative analysis of personal laws among these is discussed below.
At first, through the Charter of 1753, the British gave both Hindus and Muslims freedom to practise their personal laws. It was clearly mentioned that there would be no interference from the British unless the two parties in a dispute willingly submitted to the jurisdiction of the court. In 1772, the Governor General of India, Warren Hastings, laid down that the laws of the Quran would be applied to Muslims and those of the Shastras to Hindus. After independence, Pakistan made the West Pakistan Muslim Personal Law (Shariah) Act, 1962, which deals with all questions regarding succession, marriage, property, divorce, dowry, guardianship, legitimacy, and many more, applicable only where the parties are Muslims. Under Hindu law, marriage is considered a sacrament. The Hindu Marriage Act of 1955 introduced the concepts of separation and divorce. Marriage was considered a sacrament. Further, in 1976, the Marriage Law Amendment Act expanded the grounds for divorce in Hindu marriage, extended the meaning of desertion, and gave minor girls the right to refuse their marriage. In 1956, the Hindu Succession Act was passed; the Hindu Minority and Guardianship Act and the Hindu Adoptions and Maintenance Act were enacted to cover other areas.[1]
Hindus personal laws are mainly found in: The “Shruti” contains all four Vedas, such as the Rig Veda, the Sama Veda, the Yajurva Veda, and the Athrva Veda. The “Smritis” are of three types: codes of Mnau, Yajnavalkya, and Narada personal laws and customs as recognised by statutory law by Hindus. These are applicable to legal issues related to matters of inheritance, succession, marriage, adoption, co-parenting, the partition of family property, the obligations of sons to pay their father’s debts, guardianship, maintenance, and religious and charitable donations.
These personal laws and customs are applied to all matters related to inheritance, wills, succession, dowry, legacies, divorce gifts, wakfs, guardianship, and preemption.
The Christian Marriage Act was enacted in 1972 in order to deal with different matters related to marriage. The Indian Divorce Act, enacted in 1869, contains matters related to divorce. Under the guidelines of this act, the husband can appeal for divorce on the grounds of adultery by the wife. Similarly, the wife has the right to appeal for divorce if her husband converted to another religion, married another woman, or was found guilty.
In Pakistan, a recent amendment regarding personal laws of minorities has been passed in 2020, namely “The Protection of the Rights of Religious Minorities Act, 2020.” In this act, the protection of minorities from forced conversion to religion, changes in their education curriculum, places of worship, and many other important rights are to be ensured. In India, the personal law amendment bill introduced in August 2018 regarding the amendments in personal laws related to the divorce act of 1869, the dissolution of Muslim marriage act of 1939, the special marriage act of 1954, the Hindu marriage act of 1955, and the Hindu adoptions and maintenance act of 1956, in which leprosy is no longer valid for separation, divorce, and maintenance.
In Pakistan, a recent amendment regarding personal laws of minorities has been passed in 2020, namely “The Protection of the Rights of Religious Minorities Act, 2020.” In this act, the protection of minorities from forced conversion to religion, changes in their education curriculum, places of worship, and many other important rights are to be ensured. In India, the personal law amendment bill introduced in August 2018 regarding the amendments in personal laws related to the divorce act of 1869, the dissolution of Muslim marriage act of 1939, the special marriage act of 1954, the Hindu marriage act of 1955, and the Hindu adoptions and maintenance act of 1956, in which leprosy is no longer valid for separation, divorce, and maintenance.
In Pakistan, a recent amendment regarding personal laws of minorities has been passed in 2020, namely “The Protection of the Rights of Religious Minorities Act, 2020.” In this act, the protection of minorities from forced conversion to religion, changes in their education curriculum, places of worship, and many other important rights are to be ensured. In India, the personal law amendment bill introduced in August 2018 regarding the amendments in personal laws related to the divorce act of 1869, the dissolution of Muslim marriage act of 1939, the special marriage act of 1954, the Hindu marriage act of 1955, and the Hindu adoptions and maintenance act of 1956, in which leprosy is no longer valid for separation, divorce, and maintenance,
|
Hindu laws |
Muslim laws |
|
Under the Hindu law, the practice of polygamy is abolished |
In Muslim law, the practice of polygamy is present under the law |
|
Adoption is there under the Hindu law |
Adoption is not there under the Muslim law |
|
Under the Hindu law, there is concept of separate and ancestral property |
under the Muslim law, there is joint and single property |
|
Hindu law is governed by the Hindu succession act, 1956 |
Muslim law is governed by Muslim shariat act, 1937[2] |
In conclusion, personal laws play an important role in differentiating people according to their religious and customary rights. Every country and its people have their own personal laws. The most important personal laws in Hinduism are the Hindu Marriage Act of 1955 and the Hindu Adoptions and Maintenance Act of 1956, and in Muslimism, the Muslim Personal Law is the most important personal law.
[1] https://www.ipf.org.in/encyc/2020/11/13/2_02_27_53_History-of-Personal-Laws-in-India-Papers_1.pdf
[2] https://blog.ipleaders.in/comparative-analysis-personal-laws-reference-india-pakistan-bangladesh/
Authored by Yasir Gill, Legal Intern, LawDiktat
Edited by Sahid, Team Member, LawDiktat.
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In the past, performers’ rights were not recognized under copyright law, which meant that actors’ performances in cinematograph films and singers’ performances in sound recordings were not protected by law. Therefore, the use of dramatic works or sound recordings did not require the performer’s consent. However, in India, the Copyright Act of 1957 began recognizing performance rights in 1994, which was later adopted worldwide by the Treaty of Rome in 1961. The recognition of performers’ rights under copyright law ensures that performers have the exclusive right to authorize or prohibit the recording, reproduction, or broadcast of their performances. In India, the laws governing performer rights are contained in various sections of the Copyright Act of 1957, including Sections 38, 39, and 39A. These sections outline the rights of performers and provide for the protection of their performances, including the right to remuneration for the use of their performances.
When the copyright was first implemented under British rule, performer’s rights were not recognized. Even after independence, the Copyright Act of 1957 did not acknowledge performers’ rights. However, in the case of Fortune Films v. Dev Anand in 1979, the Bombay High Court ruled that performers’ rights do not fall under copyright as they were not recognized under the Act. Subsequently, it was realized that performers’ rights needed to be incorporated into copyright law. In 1994, the Copyright Amendment Act was enacted, and Sections 38, 39, and 39A were introduced to recognize performers’ rights. The Indian Copyright Act defines the term “performer” in Section 2(qq), which includes actors, dancers, musicians, singers, acrobats, conjurers, snake charmers, jugglers, those giving lectures, and anyone else who performs. However, sports are considered competitive, and the results are unpredictable, and since athletes are required to play by the rules and cannot be creative, they cannot be considered performers within the context of sports. The Indian Copyright Act recognizes the range of performers in addition to the TRIPS and Rome Convention baseline requirements. This provides performers with the exclusive right to reproduce, issue copies, perform, communicate, and make adaptations of their performances.
In the past, the contributions made by those who assisted intellectual property creators in making their work known to the public were not recognized. The worth of a song created by a lyricist or an author’s play is often dependent on performers to bring the work to life. However, performers were not always acknowledged for their contributions. The recognition of performer rights began in 1961 with the adoption of the Rome Convention, which provided them with certain rights. Performers now have the right to prevent others from recording or fixing their live performances without their permission. They also have the right to stop their performance from being commercially exploited for any other purpose without their prior approval.
It is worth noting that the term “broadcasting organization” has been added to the list of individuals whose rights may need to be recognized under the performer rights laws. This inclusion recognizes the significant contributions made by broadcasting organizations to the dissemination of works by performers. The Indian Copyright Act of 1957, as amended in 1994, recognizes performer rights, which are covered by Sections 38, 39, and 39A. The Act defines a performer as an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, lecturer, or anyone who performs. However, the Act does not extend performer rights to athletes, as sports are competitive and require players to follow rules rather than be creative performers.
According to the act, the performer does have the sole authority to do the following: –
The Copyright Act’s Sections 63 – 70, as well as Section 55, provide remedies for performers whose rights have been infringed upon. In case of a performer’s rights are violated, the law allows for the defendant’s property to be searched through a court order. This court order is known as an “Anton Pillar order.” An Anton Pillar order is typically granted to enable the claimant and their legal representative to search the defendant’s property for any relevant information that can support the claim that the performer’s rights have been infringed.
Performers have various other options available to them if their rights are violated, including criminal and civil remedies in addition to an Anton Pillar order. Criminal sanctions may include the collection of a fine from the offender and imprisonment of up to three years. Civil sanctions may involve obtaining a temporary or permanent injunction.
It is important to note that the Anton Pillar order is a serious legal tool and should not be sought lightly. Courts take a cautious approach in granting Anton Pillar orders, as they are intrusive and may result in substantial damage to the defendant’s reputation and business. A court may require the claimant to provide a compelling justification for the Anton Pillar order and may impose strict conditions to safeguard the defendant’s interests. Performers who have had their rights infringed upon may seek legal assistance to explore their options and determine the most effective course of action.
It can be inferred that copyright is a form of intellectual property rights protection provided by the law, which grants exclusive rights to the authors of original works. In addition to authors, performers, such as artists, dancers, acrobats, snake charmers, and others, are also granted exclusive rights under copyright law. These exclusive rights are granted to motivate performers to create more original content without the fear of infringement. The inclusion of performers’ rights in copyright law is a positive development, as it recognizes and protects their valuable contributions.
Although performers have long been recognized as an essential part of copyright work, they have not always received the necessary level of acknowledgement or protection. The inclusion of performers’ rights under the copyright act has significantly improved their financial situation and provides them with legal protection for their rights.
It is important to note that performers’ rights may vary depending on the jurisdiction and the type of performance. For example, some jurisdictions may recognize moral rights for performers, such as the right to be credited for their performance or the right to object to modifications of their performance. It is important for performers to understand their legal rights and seek legal assistance if necessary. Overall, performers’ rights are an essential part of copyright law, and their inclusion reflects the importance of their contributions to the creative industry.
Authored by Dhruv Kaushik, Legal Intern, LawDiktat
Edited by Sahid, Team Member, LawDiktat.
]]>Trademark licensing is a common practice worldwide, as it provides benefits to both the licensor and the licensee. The licensor can benefit from the mark’s increasing reach and popularity, and can earn income through royalties. On the other hand, the licensee can use the mark for commercial purposes. However, it is essential to carefully review the license agreement as the mark’s reputation can be negatively impacted if proper checks are not conducted. Therefore, it is important to include quality control provisions in the licensing agreement to ensure that the products or services provided under the mark meet the required standards. Failure to maintain quality control may result in the termination of the license agreement by the licensor.
When a trademark owner licenses their trademark to a third party, they grant them the right to use it in the course of business in exchange for a fee based on the sales of products or services using the trademark. The most common form of trademark licensing is “classical trademark licensing,” which allows the licensee to manufacture and sell products using the trademark. Other forms of licensing, such as merchandising and franchising, are also available. In essence, trademark licensing permits a third party to use the registered trademark without transferring ownership to them. Instead, the trademark owner receives a royalty on the sales of products or services that are licensed under the brand.
Although the terms ‘License’ or ‘Licensing’ are not defined under the Trademarks Act of 1999, the Act regulates trademark licensing through Sections 48 to 55. The term ‘registered user’ is similar to the term ‘license.’ According to Section 48(1), the licensing agreement does not need to be registered.
Only the registered trademark owner has the authority to award a trademark license. The trademark owners can offer a license to any person or third party that wants to use a trademark. Trademarks, both registered and unregistered, can be transferred in India by way of license or assignment. In India, there are two types of licenses for registered trademarks: a simple license agreement for permissive usage and a Registered User license agreement that is filed only with the Registrar of Trademarks. According to the statute, the licensee has various rights under this license.
A trademark license is an agreement that permits a third party to use a Registered Trademark legally. International corporations, especially those in the IT industry, commonly offer TM licenses in other countries to exploit their trademarks. For instance, a brand owner can provide a license to another individual to use the trademark in the course of their business for both services and goods. When a registered trademark license is granted, the trademark itself is not sold. The license simply grants the authority to use the trademark, and the trademark remains the sole property of the owner. The rights provided are time-limited and may include the right to use the trademark, distribute goods, and other related activities. An exclusive or non-exclusive TM license may be obtained. According to Section 48 of the Trade Marks Act, a person who is not the registered owner of a trademark may register as a registered user. Therefore, the rules of this act may allow the use of a registered trademark, but only if both parties meet the essential circumstances.
Financial Gain:- Because the Trademark is widely exploited for profit and royalties is paid to the owner, both parties can benefit financially. The Licensor, who previously couldn’t profit from their Trademark owing to a lack of exposure or resources, can now take advantage of the Licensee’s resources by granting them the licence and making more money. The Licensee is also entitled to a portion of the profits.
Increase the popularity of a Trademark:- The Trademark automatically gets popular as it reaches a large number of clients. This results in higher income from increased sales, as well as more Trademark Licensing.
Assist with Business Expansion:- As the owner’s business grows, so does his or her reach into other countries. The Licensee can also use their distribution abilities to expand the business rather than limiting it to a single area.
Trademark Recognition:- A trademark becomes well-known as a brand in previously unknown countries. The Licensee is free to advertise the product using their own resources.
A licensee is regarded as a “registered user” within Section 49 of the TM Act of 1999. Within six months of the date of the agreement, the joint application must be filed with the Registrar using Form TM-U. For each mark, the government charges Rs 4500. This is how it works:-
Trademark licensing is a powerful tool in preventing trademark infringement, benefiting both the licensee and the licensor in their commercial development. Moreover, it helps to enhance the brand image since the licensee is required to maintain strict control over the quality and standards of the products and services sold or offered under the mark. To avoid misunderstandings and confusion, it is essential that the parties explicitly state their intentions, which necessitates a well-drafted and structured agreement. Additionally, it is important to consider local tax concerns with regard to royalty payments.
It should also be noted that trademark licensing agreements should contain certain provisions that govern the relationship between the licensee and the licensor. These provisions may include a description of the licensed trademark, the scope of the license, the duration of the agreement, the payment of royalties, quality control measures, and dispute resolution mechanisms. It is important to consult with a qualified attorney to ensure that the license agreement is legally binding and enforceable.
Authored by Dhruv Kaushik Legal Intern, LawDiktat
Edited by Sahid, Team Member, LawDiktat.
]]>Interstate arrest refers to the situation where officers from one state arrest a suspect or criminal in another state without the proper legal authority to do so. In the United States, the Fourth Amendment of the Constitution prohibits unreasonable searches and seizures, including arrests, by law enforcement officers. As such, police officers may only arrest or investigate a suspect within their own state’s borders, absent certain limited circumstances such as the pursuit of a fleeing felon.
For example, if a criminal commits a crime in Delhi and is located in Delhi, only the Delhi Police officials have the authority to arrest the criminal, not police from other states. In order for a state’s police force to arrest a suspect in another state, they must work with the police department of that state to coordinate the arrest or obtain a warrant from a court in the state where the suspect is located.
It is important for law enforcement officers to adhere to the proper legal procedures when making an arrest, including following jurisdictional limitations. Failure to do so could result in the suppression of evidence or other legal consequences.
The term “arrest” is defined by Farlex legal dictionary as “the taking or keeping of a person in possession by legal authority, particularly in response to a criminal complaint.”
However, when a person is detained by police from one state for a crime committed in another state, it is referred to as an “interstate arrest by police.” This type of investigation or arrest is generally considered unconstitutional unless authorized by law.
Under Indian law, the police have the power to arrest or examine an accused who is within their state’s borders. This authority is granted to police officers, magistrates, or any other person authorized by law, including private individuals.
According to section 41 of the Criminal Procedure Code of 1973, a police officer may arrest a person both with and without a warrant. Additionally, if a person who committed a non-cognizable offence refuses to reveal their name and address of residence, they can be arrested. Judges, whether executive or judiciary, may also arrest a person if a crime occurs in their sight within their local jurisdiction.
It is important to note that the power of arrest must be exercised lawfully, and any arrest made outside of the legal framework can be challenged by the accused in court. The arrestee has the right to be informed of the grounds of arrest, the right to legal representation, and the right to be produced before a magistrate within 24 hours of arrest.
The police must obtain prior authorization or approval from higher or superior officials to leave their state or UT to conduct an investigation. This approval should be documented in writing or via phone communication. When making an arrest, the police officer must rely on factual evidence and provide written documentation of the reasons for the detention, demonstrating that it is necessary for the investigation. In situations where there is a risk of the accused escaping or implicating evidence disappearing, the police officer should seek authorization from the jurisdictional Judge to issue an arrest or court order. The reasons for travelling to another state without an arrest or court order should be documented.
If the potential arrestee is a woman, a female officer must be included in the team. All officers in the team should be in uniform and wear identification with their precise, clear and readily visible designations. The police should also make an effort to obtain independent witnesses from the local community.
Before being transported out of the state, the detained person should be given the opportunity to speak with their lawyer. The police should stop at a nearby police station on their way back to make a diary entry describing the details of the people and items confiscated during the investigation. Upon returning to their home state, the police team should also document their return.
After presenting the arrested person before the magistrate within 24 hours, the police should attempt to obtain a travel remand, unless exigencies of the situation require otherwise.
The officer before whom an arrested person is produced should consider the facts of the case and not automatically grant a transit remand. It is imperative that the officer ensures that the investigation diary contains relevant material to support the request for a transit remand. A judicial decision is usually taken when the charge is presented for remand, and the judge must ensure that the requirements of Criminal Procedure Code Section 41(l)(b) are met.
Furthermore, Article 22(1) of the Indian Constitution outlines another mandatory procedural requirement for the Magistrate to follow when deciding a travel remand application. The Magistrate must ensure that the detained person has the right to legal representation and is assisted by a competent guardian of their choosing. The Magistrate must also inquire of the person brought before the court whether they are aware of the circumstances surrounding their arrest and whether they require legal representation.
In order to make an interstate arrest, it is required that the police inform the police of the other state of the situation. It should be noted that strict adherence to predetermined laws and regulations is required when making such an arrest. It is possible to initiate an interstate investigation and arrest the accused individual, but it must be done in accordance with the law.
Police personnel and magistrates are expected to follow the guidelines set forth in the case of Sandeep Kumar v. The State (Govt. of NCT of Delhi), AIR 2019. This case established a reasonable basis for one state’s police agency to arrest a suspect in another union area, provided that the arrest is made in accordance with the law.
It is important to note that the laws and regulations governing interstate arrests may differ from state to state, and it is crucial to understand and comply with the laws of the state in which the arrest is being made. Failure to do so may result in the arrest being deemed illegal, and the individual arrested may be released without charges.
o Meera Emmanuel, Cannot condone “lawlessness by police”: Delhi HC Orders execution of guidelines on inter-state investigation and arrest, Bar and Bench – Indian Legal news, https://www.barandbench.com/news/litigation/cannot-condone-lawlessness-by-police-delhi-hc-orders-execution-of-guidelines-on-inter-state-investigation-and-arrest-read-guidelines
o Revisit inter-state arrest procedure: HC Return to frontpage (2018), https://www.thehindu.com/news/cities/Delhi/revisit-inter-state-arrest-procedure-hc/article24796023.ece
o Anonymous User, Is inter-state arrest possible in India Legistify (2019), https://www.legistify.com/qna/answer/is-inter-state-arrest-possible-in-india/
o Radhika Roy, Explainer: Inter-state arrest, Transit Remand & right to legal representation Live Law (2021), https://www.livelaw.in/know-the-law/inter-state-arrest-transit-remand-right-to-legal-representation-170188?infinitescroll=1
o Prabhash K Dutta, Disha Ravi Case: Did Delhi police violate inter-state arrest guidelines? India Today (2021), https://www.indiatoday.in/news-analysis/story/disha-ravi-arrest-delhi-police-inter-state-police-action-guidelines-1769700-2021-02-16
o What is inter-state arrest and its Guidelines, Writing Law (2022), https://www.writinglaw.com/inter-state-arrest-and-guidelines/
o Explainer: Inter-state police arrest procedures, cooperation: India News – Times of India, the Times of India, https://timesofindia.indiatimes.com/india/explainer-inter-state-police-arrest-procedures-cooperation/articleshow/91378510.cms
Authored by Dhruv Kaushik, Legal Intern, LawDiktat.
Edited by Sahid, Team Member, LawDiktat.
]]>The Indian Contract Act of 1872 governs all contracts formed in India. Sections 1 to 75 of the Act pertain to the general laws that apply to all types of contracts. The Act’s remaining sections address three specific types of contracts, namely:
As per Section 124 of the aforementioned Act, a contract whereby one party agrees to save the other from any loss caused to them by the conduct of any person, including the promisor or any other party, is known as a “contract of indemnity”. The individual who promises to indemnify or cover the loss is referred to as the “indemnifier,” and the person to whom the promise is made is known as the “indemnified” or the “indemnity-holder.” In such a contract, the indemnifier acts as the promisor, and the indemnity-holder is the promisee.
It is important to note that a contract of indemnity is a contingent contract between two parties, wherein one party promises to save the other from any loss.
If we strictly interpret Section 124, we observe that the indemnity holder can hold the promisor liable on the contract of indemnity. However, the promisor must suffer a loss before becoming entitled to receive anything from the indemnifier.
Nonetheless, in the landmark case of Gajanan Moreshwar Parelkar v. Moreshwar Madan Mantri (1942) BOM LR 703, the Bombay High Court held that when a person contracts to indemnify another, the promisee may call upon the indemnifier to fulfill the contract or liability. This view is also supported by Kennedy L.J. in an English case and appears to be fair and just.
Furthermore, it must be noted that for the contract to be valid, the consideration and conditions must be lawful.
The definition of a contract of indemnity is not entirely definitive under Indian law. It only encompasses express promises to indemnify or instances where the loss is caused by the indemnifier’s conduct or the conduct of another person. It does not include cases where an implied promise to indemnify has been made or where loss arises from accidents or events beyond the control of any person. Furthermore, even contracts of insurance may not fall within the strict interpretation of Section 124.
In contrast, English law defines a contract of indemnity as a promise to save another from loss caused by a transaction entered into at the promisor’s instance. This definition covers losses resulting from accidents or events beyond the control of any person and is not dependent on any person’s conduct. The definition of a contract of indemnity is much broader in scope under English law.
Section 125 of the Indian Contract Act addresses the rights of an indemnity-holder when they are sued. According to this section, an indemnity-holder acting within the scope of their authority is entitled to receive certain things from the promisor.
Firstly, the indemnity-holder is entitled to receive all damages that they may have to pay in any suit to which the promise to indemnify applies. Secondly, they are entitled to receive all costs that they may have to pay in bringing or defending such suits. However, the indemnity-holder must have acted prudently and within their authority, as any prudent person would have acted under similar circumstances in the absence of a contract of indemnity.
Thirdly, the indemnity-holder is entitled to receive all sums that they may have paid under the terms of any compromise of any such suit. However, the indemnity-holder must have acted prudently and not against the order of the promisor.
It is noteworthy that the Indian Contract Act does not address the rights of the indemnifier in a contract of indemnity.
The issue of the time of commencement of liability under a contract of indemnity has been a matter of debate and has not been clearly defined under the Indian Contract Act. While some High Courts have held that the indemnifier’s liability only arises when the indemnified party has actually suffered a loss, others have taken the view that the indemnified party can force the indemnifier to be liable even before the loss has occurred. It is important to note that the parties can clarify this issue by including specific terms in their contract of indemnity. In any case, a contract of indemnity is a special type of contract that requires one party to compensate the other in case of loss.
Authored by , Legal Intern, LawDiktat.
Edited by Sahid, Team Member, LawDiktat.
Prostitution is the practice of engaging in sexual activity in exchange for monetary compensation. This practice has existed in society for centuries and is considered one of the oldest professions in the world, with its roots dating back to Babylon. However, in modern times, sex workers face numerous challenges and human rights violations. They are often subjected to sexual abuse, violence, and brutal working conditions worldwide. Many women are forced into prostitution due to human trafficking, poverty, and unemployment. Tragically, young girls are often targeted, kidnapped, and sexually assaulted before being coerced into prostitution, with their basic rights being denied. Unfortunately, even if their rights are violated, they may not be able to seek help from the police because they are asked to provide sexual favors to the officers. Additionally, sex workers are often denied their right to health, which is a Fundamental Right enshrined in Article 21 of the Indian Constitution.
There has been a great deal of confusion and misunderstanding regarding the legal status of prostitution in India. Around the world, the legal status of prostitution can generally be divided into three categories: countries that legalize prostitution, countries that legalize it with certain restrictions and limitations, and countries that criminalize it. India falls into the second category, with laws that are somewhat ambiguous. The Immoral Traffic (Prevention) Act of 1956 is the law that defines prostitution in India. While prostitution is typically understood as the practice of engaging in sexual activity for monetary compensation, according to section 2(f) of the Act, “prostitution” means the sexual exploitation or abuse of persons for commercial purposes, and the term “prostitute” is interpreted accordingly.
The Act neither legalizes nor criminalizes prostitution, and there is no mention in the Indian Constitution that the act of prostitution is a crime or illegal. However, the Act does penalize certain actions related to prostitution, such as solicitation or seduction for the purpose of prostitution, prostitution in public places or near public places, running of brothels, etc. The current Act is vague and the provisions related to prostitution are ambiguous.
In accordance with Article 21 of the Indian Constitution, individuals cannot be deprived of their life and personal liberty except as established by law. While the Constitution of India does not explicitly recognize the Right to Health as a fundamental right under Part III, which deals with Fundamental Rights, the Right to Health is now considered an integral part of Article 21 due to various judicial interpretations. The Supreme Court of India has expanded the scope of Article 21 to include the Right to Health through its judicial interpretations.
Sex workers often face numerous human rights violations. In Indian society, prostitution or sex work is not recognized as a profession but is instead seen as an immoral act and lifestyle. The stigma attached to this profession results in the denial of basic rights for sex workers and their families, not only by the general public but also by state officials who are responsible for protecting their rights. Sex workers are unable to access proper healthcare and are subject to abuse and exploitation by government officials and police officers. Police officers often detain, harass, beat, rape, and torture sex workers, and are not held accountable for their actions because sex workers are considered socially marginalized.
Many sex workers are denied medical treatment by doctors and face discrimination that prevents them from accessing proper healthcare, resulting in lower levels of health. Many sex workers are forced to have unprotected sex with police officers, exposing them to the risk of sexually transmitted diseases. According to various studies, many sex workers are HIV positive and have syphilis. Additionally, sex workers are often forcibly drugged, becoming victims of drug abuse. Health includes not only physical health but also mental health, which is often not discussed in relation to sex workers. Verbal abuse, denial of ration, and discrimination faced by sex workers and their families can affect their mental health. Many minor girls are forced into prostitution, which can cause trauma and lead to depression, anxiety, and post-traumatic stress disorder.
Prostitution is an unfortunate reality in our society that cannot be eliminated. Therefore, it is better to regulate it. The first step towards achieving this is the need for clear and unambiguous laws, unlike the current act. Proper regulation of this industry is also necessary. The government should bring all brothels under its supervision and regulation, and these brothels should be licensed and registered under an Act. Many countries, such as the State of Nevada, USA, have legalized and regulated this industry. They have even made provisions pertaining to the health of sex workers. According to their laws, clients are required to use condoms when availing the services.
Rehabilitation centers are also necessary for those women who entered this profession by force and not by choice. Sex workers are often blamed for their rape by society, and even their families refuse to accept them. Moreover, sex workers are also victims of sexual assault, drug abuse, and verbal abuse. Hence, there is a dire need for rehabilitation centers for these women.
Sex workers suffer not only from HIV or other sexually transmitted diseases but also from various physical and mental illnesses. However, they cannot access proper medical care due to the discrimination prevailing against them in society. Thus, a system is necessary through which sex workers can obtain access to adequate medical care.
In modern times, society is becoming more liberal and people are discussing topics that were once considered shameful. Many NGOs are working to protect the rights of sex workers. However, they are still considered a marginalized section of society and face discrimination every day in terms of freedom, food, and health. It is disheartening that despite knowing that many sex workers are in this profession without their consent, we do not sympathize with them. Even if a woman voluntarily chooses to work as a sex worker, we have no right to deny her basic rights such as food, health, and dignity. Simply regulating the industry and creating laws related to prostitution is not enough. To ensure that sex workers can enjoy their rights, the stereotypes surrounding them must be eliminated. Society must accept sex workers and treat them like any other human being. Both the government and society must work together to reform the lives of sex workers.
Authored by Vatsal Vatta , Legal Intern, LawDiktat.
Edited by Sahid, Team Member, LawDiktat.
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Advertising is considered the most effective way to communicate with clients. By promoting various products and brands, advertising helps customers become more aware of their choices in the market. It caters to people of all ages and utilizes diverse media types, strategies, and methodologies to reach a wider audience. Furthermore, advertising plays a crucial role in consumer protection by addressing the issue of misleading ads. The Consumer Protection Act provides provisions to tackle this problem, but the Indian government has established explicit criteria to ensure fair advertising practices. On June 8, 2022, the Department of Consumer Affairs announced the implementation of the Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022 guidelines.
The purpose of these guidelines is to safeguard consumers from being misled by false claims, exaggerated promises, inaccurate information, or misleading statements. Such deceptive practices violate several consumer rights, including the right to be informed, the right to choose, and the right to protection from hazardous products and services, all guaranteed by Section 2(9) of the Consumer Protection Act, 2019.
The Central Consumer Protection Authority has exercised its authority under section 18 of the Consumer Protection Act, 2019, and issued guidelines to prevent misleading advertisements and endorsements. While the definition of ‘misleading advertisement’ is provided under section 2(28) of the Consumer Protection Act, 2019, the guidelines outline a set of qualities and criteria that advertisements should follow to avoid being deemed deceptive. Essentially, the guidelines serve as suggestive standards for advertisements. Conversely, any advertisement that fails to meet the criteria or standards outlined in the guidelines may be considered misleading according to the exclusionary principle.
The key conditions for an advertisement to be considered not misleading set out by the guidelines are as follows:
Bait advertisements are promotions that offer goods, products, or services at a low price to attract customers. While the Guidelines do not explicitly prohibit bait advertisements, they do specify certain requirements that must be met. When publishing a bait advertisement, it is crucial to ensure that the consumer can purchase the advertised good, product, or service at the advertised price. Furthermore, there must be sufficient supply to meet the expected demand at the time of publication. If the advertised item is only available for a limited time, this should be disclosed in the advertisement. Any restrictions on the availability or supply of the good, product, or service, such as age or geographic limitations, should be clearly stated. Lastly, there should be no incentives for consumers to buy the item under less favorable market conditions than usual.
The Guidelines place restrictions on the use of surrogate or indirect advertisements. These guidelines prohibit any advertisement that explicitly or implicitly implies that it is for goods or services whose advertising is otherwise restricted or prohibited by law. The concept of “surrogate advertisement” refers to the circumvention of such restrictions or prohibitions by portraying an advertisement as one for other goods or services that are not subject to such limitations.
However, there is a clause that allows the use of a brand that was previously used for “prohibited” goods or services, as long as it does not violate the Guidelines. This clause may seem ambiguous, and it should be read in conjunction with rule 7(2)(viii) of the Cable Television Network Rules, 1994, which outlines the conditions under which the same brand used on “prohibited” goods can be advertised for other permissible goods or services.
Furthermore, advertisements targeting children or featuring children must not exploit their innocence or lack of experience.
Any advertisement that refers to, targets, or uses minors must go by a number of requirements outlined in the Guidelines, which, among other things, state that such advertisements must not:
In order to prevent misleading advertisements and endorsements, the Central Consumer Protection Authority has issued guidelines under Section 18 of the Consumer Protection Act, 2019. These guidelines set forth criteria for advertisements that may not be considered deceptive. While bait advertisements are not outright banned, they must follow certain requirements, such as ensuring that the advertised product or service is available at the advertised price and that there is sufficient supply to meet anticipated demand. Surrogate or indirect advertisements are also restricted, and it is not permitted to use celebrities in commercials for products that are prohibited from sale to minors or require a health warning. Advertisements for junk food are not allowed during children’s programming, and disclaimers must adhere to specific rules regarding language, font, placement, speed, and legibility. Penalties for non-compliance with the Guidelines are not specified separately, but the CCPA may use its investigative and enforcement powers as specified in Section 18 of the Act, and fines ranging from INR 10 to 50 lakh may be imposed.
The Consumer Protection Act’s Guidelines are expected to be strict and limit the leeway advertisers had previously when producing and releasing advertisements. They represent a significant shift in the regulatory framework for advertisements, which had mostly been self-regulated through the ASCI Code. The viability of advertising specific goods and services may be affected by the restrictions. For example, “junk food” ads that target children may require significant modifications to comply with the Guidelines. Since the Guidelines apply to all forms and formats of advertising, including unconventional forms such as social media influencers, metaverse ads, non-fungible token ads, and pop-up or disappearing online ads, they must adhere to the Act and Guidelines’ regulations. The Guidelines will be crucial in comparative advertisement/disparagement cases, which were previously only covered by tort law and judicial precedent.
Authored by Vatsal Vatta , Legal Intern, LawDiktat
Edited by Sahid, Team Member, LawDiktat.
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