On 25th September 2020 the Central government notified the Transgender Persons (Protection of Rights) Rules, 2020. The following article summarises the Transgender Rights regime in India.
The Transgender community in India includes hijras, eunuchs, Jogtas, Jogappas, Shiv Shakthis, etc. Transgender is an umbrella term to recognize persons whose gender identity, gender expression, and behaviour do not conform to their biological sex. Hijras are not men by appearance and psychologically, but they are not women too. They do not have any reproduction or menstruation organ biologically provided to the females. The term also includes the people who intend to or have undergone sex reassignment surgery (SRS) which are also known as Trans-sexual persons. The term transgenders have a broad connotation including post-operative, pre-operative individuals but not limited to this.
Historical background of Transgenders in India 
The Transgender community finds a substantial presence in ancient Hindu mythological and other religious texts. The Indian Mythological epic “Mahabharatha” (Around 3000 BC) suggests the presence of a trans man named Shikhandi. Another such Hindu text named Ramayana (Around 5000 B.C.), suggests that Transgenders were an integral part of followers of Lord Rama. The Jain texts also mention the concept of ‘psychological sex’. Transgenders also played a part in the royal courts of the Mughal empire in medieval India.
Transgenders have played a notable role in world history but the scenario changed during the colonial rule. The British government passed an Act named Criminal Tribes Act, 1871 to regulate the conduct of the transgender community in India. The Act termed the hijras as an inherently criminal tribe. It labeled the transgender community under the term ‘eunuchs’ and also classified it in two categories i.e. respectable eunuchs and suspicious eunuchs. The Act also warned that if any eunuch was found doing traditional activities of the hijra community like public dancing or dressing in women’s clothing will be arrested or will be charged with a fine. The Act also mandated the registration and surveillance of the transgender community. This Act was later repealed post-Independence.
Recent Legal Developments in India
National Legal Services Authority v. Union of India and others 
This turned out to be a remarkable judgment for the fate of 4.88 lakhs transgenders in India (Census 2011). This judgment was delivered by a two-judge bench including Justice K.S.P. Radhakrishnan and Justice A.K. Sikri.
The writ petition was filed by the transgender community seeking recognition of their right to choose their gender identity other than provided to them. The petitioners submitted that the non-recognition of their right to choose the gender was a violation of their rights under Article 14 and 21 of the Constitution. They contended that the right to choose gender is an indispensable part of the Right to live with dignity provided under the ambit of Article 21 of the Constitution. They also prayed that transgenders should be recognized as a ‘third gender’ and that they should be provided all the legal and constitutional protections.
The Court explained that Articles 14,15,16,19, and 21 do not exclude transgenders. But on the other hand, Indian law recognizes binary gender based on the ‘Biological test’. The court stated that we would rather accept the psychological test to recognize genders.
The court allowing the petition declared that transgenders should be treated as the ‘third gender’ to protect their rights under Part III of the Constitution. Recognizing the right of transgenders to self-identified genders, the court directed the Central and the State Governments to grant them legal recognition. The court also directed the governments to grant them the status of Socially backward classes and also provide them essential reservations in educational institutions and employment. Realizing the social issues faced by the transgender community the court asked the Central and the State Government to address the problems faced by Transgenders like social stigma, gender dysphoria, social pressure, shame, etc., and to create social awareness about the Transgenders.
Transgender Persons (Protection of Rights) Act, 2019 
The Indian Parliament passed the Transgender Persons (Protection of Rights) Bill, 2019 on 26th November 2019 and received the assent of the President on the 5th December 2019. The object of the Act is to ensure the protection of rights of transgender persons and their welfare. Section 3 of the Act prohibits discrimination against transgender persons on various grounds. The Act provides the right to self-perceived gender identity.
Criticisms of the Act by Activists
- The Act requires a person to obtain a certificate from a District Magistrate to change the proof of gender in documents after proof of sex reassignment surgery is provided.
- The Act criminalizes begging but does not provide reservations for employment or education.
- The Act does not talk much about intersex, gender-queer, and transmen.
Transgender Persons (Protection of Rights) Rules, 2020
On 13th July 2020, the Central Government of India published the draft of Transgender Persons (Protection of Rights) Rules, 2020 under section 22 of the Transgender Persons (Protection of Rights) Act, 2019. Later on 25th September 2020, The central government notified the Transgender Persons (Protection of Rights) Rules, 2020. The rules provide a procedure to apply for the certificate of identity under section 5 of the Act. It also provides for the procedure of change in gender application under rules 6 and 7.
It also directs the educational institutions to constitute a committee for redressal of complaints of discrimination with transgenders in the respective educational institutions.
Civil suit is the name given for the case that is filed under the civil law by a Civil Lawyers.
The two main things that we need to understand in civil suit are:
- Allegation that meets the ground to filing a civil suit.
- Compensations to compensate for the damages.
The essential ingredients:
There are four essential ingredients which can also be called as elements that are necessary:
- A suit of civil nature, everything that is of civil nature is considered a civil suit. It must be read in contradiction with the criminal nature, so once what is not criminal will be considered as civil.
- Shall try all suits, shall is the mandatory duty of the court if any civil nature suit satisfies all the conditions of section 9 then it is the duty of the court to insert their suit and decide.
- Expressly or impliedly barred (special court), a special court has been enacted which has a jury section to decide only a particular matter which is related to that particular suit and other courts are bound to decide that matter. Expresslybarred tells the restriction for the court. Impliedly barred is an influence that the court has no jury session for a matter except the special court.
- Involvement of religious rites or ceremonies, suits which include religious rites or ceremonies is also considered as civil nature.
- Attachment of fees or particular place.
Section 9 is also known as the gateway of civil procedure code; every suit that is filed in a civil matter must qualify all the essential elements of section 9.
A plaint is considered as a suit in the court when it is of a civil matter and is qualified with the essential matter.
Preparation of a plaint
- Facts should be stated without the evidence
- Facts should be to the point
- Each paragraph should contain different facts and numbered consecutively.
- Date, sum and numbers shall be express in numbers and words
- Name and addresses of both the plaintiff and the defendant should be mentioned.
- Cause of the action should be mentioned
- Fact that the court has jurisdiction should be mentioned.
- Fact related to what kind of relief wanted should be mentioned.
- Facts related to any set off, relinquishment of portion of claim should be mentioned.
- Facts related to submission of court fee should be mentioned.
Preparation for a written statement
- Facts should be stated without the evidence
- Facts should be to the point
- Each paragraph should contain different facts and numbered consecutively.
- Date, sum and numbers, should be expressed in both words and numbers.
- Facts must be specially denied, facts which is mentioned by the victim must be told that they are true by the defendants.
- Defendant can counter-claim.
- Defendant can ask for set off.
This is the process of a civil suit, hope this gave you a brief idea on how to file a civil suit this was contributed for Civil Lawyers in Chennai by SEO Company.
“My father used to always say to me that, you know, if a guy goes out to steal a loaf of bread to feed his family, they’ll give him 10 years, but a guy can do white-collar crime and steal the money of thousands and he’ll get probation and a slap on the wrist” – Jesse Venture.
It was in the late 1930s that Edwin H. Sutherland took upon the responsibility of transforming the criminological theory. During that time all the discussions regarding crime revolved around the poor. It was during that time that he coined the term white-collar crime.
He defined white-collar crime as a crime committed by a person of respectability and high social status in the course of his occupation (Sutherland 1949, 1) The Oxford English Dictionary defines the white-collar criminals as a person who takes advantage of the special knowledge or responsibility of his position to commit non-violent, often financial, crimes.
They are often associated with business rather than individual. The most common white-collar crimes prevalent in today’s time are espionage, embezzlement, antitrust violations, bankruptcy fraud, money laundering etc. These are non-violent crimes but are a huge threat to the society. Although a victim less crime, white-collar crimes are widely acknowledged to cause financial, physical, and social harms. There are no exact statistics that can provide the detail as to how much losses are suffered due to white collar crime but it’s definitely way more than street crime.
Types of White-Collar Crimes
There are two ways to approach the concept of white-collar crime. They are offender based and offense-based. (Wen 2013) The former is defined as a type of crime which committed by a person of respectability and high social status. Offender based definition focuses more on the characteristics of the actor rather than the characteristics of the crime. The definition of offense-based crimes was given by Herbert Edelhertz in the early 1970s He defined white-collar crime as an illegal act or series of illegal acts committed by non-physical means and by concealment or guile to obtain business or to obtain personal advantage (Edelhertz, 1970).
Bank fraud arises when someone uses illegal activities to obtain money from a bank or other financial institution. It is different from bank robbery. In bank fraud, the fraud is kept a secret in the hope that nobody ever finds out. Bank fraud can be done through bank impersonation, stolen checks, forgery, fraudulent loans, internet fraud, etc.
Black mail is a type of fraud in which the other person is threatened to gain something of value. This gain doesn’t necessarily mean something of monetary value but can also be sexual favours. The threat can be of revealing embarrassing pictures of someone or damaging information about some person. It is not a crime to reveal the information but using the information to gain something.
Bribery is to try to make someone do something for you by giving them money, presents, or something else that they want. Acceptance bribe is not necessary for the offence of bribe to be committed. (Dictionary 2017)
Computer frauds are those types of fraud which include stealing money from any person through hacking.
When one person is entrusted with someone else’s funds and he misappropriates them. It is termed as embezzlement.
Extortion is when somebody obtains something from someone, generally money, through threatened or actual force, it is termed as extortion.
When one hides the original source from where money was obtained, it is then called money laundering.
It is escaping from paying the taxes by showing false information to the concerned authority
These crimes are committed because the offender often makes himself believe that white collar crimes are not really crimes. However, it is certainly not true. White collar crimes are always thought of as financial crime but certain types of white-collar crimes have physical effects also. These may include violation consumer laws, workplace safety laws, and environmental laws which affects the society in general.
Some companies indulge in white collar crimes as they think that government makes regulations on moral grounds and doesn’t know the actual practicalities of the corporate world. Another reason which contributes to increase in white-collar crimes is lack of awareness amongst the victims. People don’t possess much information regarding these crimes as the nature of these crimes is different from the traditional ones.
Greed is one of the driving factors for these crimes. They tend to think that everybody is already violating laws and it will be fine even if they do it. They compete with their rivals, peers in terms of money and power and when the legitimate source of income doesn’t help them in winning the competition amongst them, they resort to white-collar crimes. Some people do it out of greed, while some do it of out need. They sometimes take heavy loans which their lawful income cannot compensate for.
So, their way out becomes white-collar crimes. Some the major examples of the white-collar crime are the Enron case, Bernard Mardoff case, wells Fargo case, etc. Even India is not far behind in producing white collar criminals. Ramlingam raju is an example of it. Ramlingam Raju , former chairman of outsourcing giant Satyam. He was sentenced for 7 years and was also fined Rs.5.5 crores over a $2.25 Billion accounting fraud scandal and is dubbed as ‘India’s Eron’.
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In one of the most deadliest terror attack on security forces, at least 44 Central Reserve Police Force (CPRF) personnel were killed and another 20 injured when a Jaish-e-Mohammad (JeM) terrorist drove an explosive-laden SUV into a convoy of vehicles carrying paramilitary troops on the Srinagar-Jammu national highway in South Kashmir’s Pulwama district at around 3 pm on this day last year.
- What Happened On February 14 Pulwama attack
*The convoy from Jammu has plied only thrice in the last fortnight, as snow blocked road and CRPF jawans were stranded in Jammu since February 4
*16 vehicles dropped out at Qazigund on reaching destination but 16 ‘mobile bunkers’ joined convoy to deal with terrorist ambushes which increase beyond Qazigund. The convoy left Qazigund at 2:38 pm
*At Latoomode of Awantipora in Pulwama, an explosive laden vehicle entered the Jammu-Srinagar highway from a left bylane. It overtook a bus, fifth in the convoy and exploded. The bus was blown to smithereens. The sixth bus was also impacted by the blast
*The convoy of 78 vehicles, transporting 2,547 jawans, left Jammu transit camp at 3:30 am. The jawans were returning from leave or going to areas of deployment
*Around 40 CRPF jawans died, 39 in the 5th bus and one from the ROP. Five more men in the sixth bus were injured
*This is the first time a suicide bomber in an explosive laden vehicle has attacked a CRPF convoy. About 80kg of explosives was used for the attack.
- How India responded to the Pulwama Attack
Tensions flared up between India and Pakistan after the attack. India India summoned Pakistan’s top envoy and lodged strong protest.
Prime Minister asserted that the security forces have been given permission to choose the timing, place and nature of their response to the Pulwama terror attack.
“All tears will be avenged” and the armed forces have been given “full freedom to decide the place, time, intensity and nature of the retaliation against the enemy. “I feel the same fire in my heart that’s raging inside you,” Prime Minister Narendra Modi said.
Nationwide protests erupted against the dastardly terror attack. Several countries including Pakistan’s all-weather friend China condemned the attack.
India launched extensive diplomatic efforts to get JeM chief Masood Azhar designated as a global terrorist, which finally became a reality on May 1 when China lifted its technical hold on a proposal introduced by the US, the UK, and France in the 1267 Committee of the UN Security Council.
India’s response: IAF strike on JeM camp in Balakot
Around 12 days after the terror attack, in the wee hours of February 26, Indian Air Force jets bombed the JeM camp in Balakot, in Pakistan’s Khyber Pakhtunkhwa.
“In an intelligence-led operation in the early hours of today(Feb 26), India struck the biggest training camp of JeM in Balakot. In this operation, a very large number of JeM terrorists, trainers, senior commanders and groups of jihadis who were being trained for fidayeen action were eliminated. This facility at Balakot was headed by MAULANA YOUSUF AZHAR (alias USTAD GHOURI), the brother-in-law of MASOOD AZHAR, Chief of JeM,” the then Foreign Secretary said in a press conference later in the day.
Pakistan’s failed strike:
A day later on February 27, IAF foiled an attempt by PAF to strike at military installations in Jammu and Kashmir. In the aerial skirmish, Wing Commander Abhinandan Varthaman piloting a MiG-21 Bison aircraft shot down a much-advanced F-16 of PAF.
However, his aircraft was also hit and upon ejection, his parachute landed in PoK, where he was taken captive by Pakistan Army.
Under international pressure, Pakistan released the IAF pilot two days later, who returned to his country to a hero’s welcome.In Video: Pulwama attack anniversary: Visuals from memorial at Lethpora camp
There might be numerous occasions in an individual’s life wherein he may be required to manage assets, properties, financial balances, and so forth, however,under certain circumstances, he may not be in the right condition to fittingly execute his/her obligations because of unanticipated conditions like being sick, being abroad (in the event of an NRI) or the individual is too old to perform his obligations. Therefore, during conditions where a monetary exchange must be completed, in situations where the presence of the individual who cannot show up actually, at that point the primary arrangement towards this is to delegate his powers, i.e., to act on behalf of the person.
This procedure of delegation of power is called Power of Attorney (POA).An unanticipated circumstance where the legitimate proprietor cannot use his capacity is the point at which a Power of Attorney deed is executed. This practice is exceptionally famous for transferring one’s powers to a trustworthy and honourable individual to direct activities like sale, leasing, registrations and so forth given that individual is busy or unavailable.
Suppose you are a non-resident Indian and need to lead the immense monetary exchange in India, for example, selling the property. In that case, this could turn into a huge problem if one needs to make a trip to India and back at all times. There is a simpler and straightforward answer to this. By drawing up the Power of Attorney for the non-resident Indians to sell their property in India, one can undoubtedly complete their exchange without in a real sense heading out to India. A power of attorney to sell property in India is not complicated.
Notwithstanding, in 2011, the Supreme Court of India in a landmark judgment saw that transferring property title through a General Power of Attorney (GPA) is illicit. Be that as it may, before learning the legitimateness of the Supreme Court request let us comprehend the idea of a Power of Attorney.
What is a Power of Attorney?
A Power of Attorney is an authorization granted by a written formal instrument whereby an individual named as the principal/donor authorizes another individual named as the attorney/agent/donee to act on his/her benefit. In India, a power of attorney is utilized by numerous property purchasers to help them with transactions engaged with purchasing a home. It could incorporate a capital acquisition of the place that is known for home, renting, selling the property or the home loan. When purchasing a home, a person should hire a dependable and reliable power of attorney who can assist an individual with the buy procedures.
The POA is frequently utilized by NRIs hoping to purchase property in India. In the simplest terms, it is the power (right) that an individual (Principal) awards to an attorney (a legal representative). A principal-legal representative relationship is established between the two, and the acts of the legal representative would bound the Principal. For example, suppose an individual has bought a property in India and cannot be physically present to handle the registration. In that case, he can assign these rights/obligations to any family member/companion through a registered power of attorney.
Kinds of POA
Special POA: In a special POA, a power of attorney is confined and restricted to a particular purpose. A special POA might transaction-specific, and the POA ceases on the culmination of a transaction.
Under a general POA, expansive powers are allowed to the representative to make decisions in the interest of the Principal. Additionally, the representative can likewise complete the different activities for the benefit of the Principal with no impediment on transactions.
A durable POA stays effective for a lifetime except if it is expressly revoked. A particular condition can be inserted in the document, expressing that the representative’s capacity would stay legitimate regardless of whether the Principal gets incapacitated.
Usage of Power of Attorney
Even before the COVID-19 pandemic, frequently travelling was impossible for some NRIs, in light of their jobs, occupied timetables and even affordability. Thus, the majority of them utilized the power of attorney instrument to lead different organizations in the nation of their origin. Under this legal course of action, one can endow anybody to represent them to conduct specific businesses on their behalf.
Regardless of whether the NRI can return to India to make the purchase, eventually, they need to employ a legal representative, for asset management purposes. Utilizing the POA instrument, an NRI can conduct different real estate-related organizations in India, including sale, purchase, leasing, mortgaging, etc. Additionally, if a property is together held, it very well may be hard for all the co-owners to present themselves and complete an exchange. Via granting a POA to one individual, the joint owners can move ahead without any issues.
Power of Attorney in Real Estate:
In Real Estate, a power of attorney plays a critical function in the transaction of the buy or sale of a home. For a long time, the authority of the POA was mishandled as they were utilized to avoid the payment of a capital gains taxwhich led to the investment of black money. In light of this issue, the Supreme Court passed a law expressing that POA should just be utilized for genuine transactions and not for the transfer of the title or right to someone else or property.
On the other hand, any POA that is assigned to help with the exchanges of the property should be registered with a sub-recorder who is situated in the jurisdiction where the purchaser lives. If the home-purchaser is an NRI, the POA picked should be certified by the consulate of the nation they live in.
What are the basic provisions in a Power of Attorney?
While initiating a Power of Attorney, it is fundamental to cover explicit mandatory provisos relying on the kind of power of attorney that is being made. Coming up next are the basic provisos that must be remembered for a Power of Attorney deed:
- Complete details of the Principal/donor making the Power of Attorney like his name, age, address as well as his present occupation.
- Important information of the agent/attorney/donee that is the individual who is getting the authority.
- The reason to grant the power to someone else must be clarified and be legitimate.
- The time, a date just as the place of making the Power of Attorney deed and its execution date also (date from which the Power of Attorney comes into force).
- If the Power of Attorney is time-bound, at that point, the planned date of the end of the Power of Attorney and on the off chance that there is no mention of the limit of the same it is to be referenced whether the Power of Attorney is durable or non-durable.
- Suppose there should arise an occurrence of a general power that is being granted. In that case, the Deed must specify the complete details of all the acts as well as the areas of allowing the said power.
For example, if a general power about a property is granted, at that point, the Principal can grant the ability to lease or purchase any property while not being authorized to sell any of the properties.
- In the event of extraordinary power, the grant of the particular duty/assignment that should be performed by the agent/attorney must be specified in the Deed.
- The Deed should likewise indicate the time limit of the special power within which the obligation must be finished.
How can a Power of Attorney be executed in India?
If an NRI is available in India, he could execute the POA from India itself, before travelling to another country:
Stage 1: The NRI needs to get the ideal matter of the POA drafted and composed on non-legal stamp paper of good worth which is by and large Rs 100.
Stage 2: Along with the legal representatives and two witnesses, the individual is needed to visit the Sub-Registrar’s Office.
Stage 3: It should be guaranteed that all the people setting off to the Sub-Registrar’s Office are conveying their valid identity proof. Copy of the POA, alongside the first duplicate, should likewise be brought.
Stage 4: At the Sub-Registrar’s office signatures, photos and fingerprints of the gathering will be gathered.
Stage 5: Now, a person needs to gather the registered POA on the due date from the Sub-Registrar’s Office. It may take three-five days after the formalities have been finished.
Consider the possibility that you are outside India.
On the off chance that you are settled abroad and won’t have the option to visit India, you may execute a POA from the nation of your residence through the Indian Embassy/Consulate.
There are two different ways to execute a POA from abroad:
Legalization: For this situation, signatures of the notary or judge before whom the POA is executed are needed to be verified by the appropriately authorized representative of the Indian Embassy/Consulate. As indicated by Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948, notarizing a deed from an approved official of the Indian Consulate/Embassy would be viewed as a legitimate public accountant.
Such a POA is not needed to be stopped at the hour of execution. Be that as it may, it should be stamped within three months from the date of receipt of the POA in India. Stamp obligation would be payable as indicated by Section 2(17) read with Schedule-I of the Indian Stamp Act, 1899, when the Deed is presented for registration in India.
The Deed of POA executed external India is demonstrated through an apostallisation cycle which is administered by The Hague Convention, 1961. Otherwise called super legalization, an apostille is a certificate which affirms and checks the signature/seal of the individual who authenticated the document. Be that as it may, this Deed, as well, requirements to follow Indian laws, for example, the Indian Registration Act, 1908, and the Power of Attorney Act, 1882. A person likewise needs to pay the stamp obligation on this.
Regulation of Power of Attorney:
A POA paper should be interpreted to incorporate all the vital powers for its execution. The POA must be given a strict interpretation, and no additional rights should be interpreted except if they are explicitly referred. For example, if the POA refers to “option to rent”, the “option to sell” cannot be credited to it.
The representative needs to act inside his scope and cannot bind the Principal by his acts which are beyond his power. As an NRI, you cannot be sued or considered answerable for the extortion of the agent, except if it is demonstrated that the misrepresentation was done in intrigue with you.
Repudiation of Power of Attorney
Suppose the Principal feels that the legal representative is abusing power allowed to him or cannot appropriately discharge the duties allotted to him. In that case, he has the choice to renounce the POA. Repudiation may likewise be required if the Principal thinks that now he is in a situation to deal with his assets.
How to deny a Power of Attorney?
- You may deny a POA during your lifetime.
- POA is additionally renounced when the Principal dies or gets insane or is declared insolvent.
- POA can be revoked on commonly agreed terms between the Principal and the representative.
- A POA is repudiated when the particular exchange for which it was executed has been accomplished.
Revocation of POA must be conducted in a similar way in which it was executed. If the POA was registered with the Sub-Registrar, you need to get it revoked from a similar office. Likewise, the representatives and the parties concerned should be appropriately educated about the cancellation of the POA.
If the interests of an enormous number of individuals are included, it is suggested that a notification be distributed in a paper. A notification about the repudiation of the POA could likewise be posted on the property where it tends to be obvious to the general public.
There have been numerous situations where individuals resort to property deal through POA to evade instalment of stamp obligation, which is illegal. Besides, selling properties where the proprietor has just right over possession, and no right over ownership through POA is additionally illegal. A fair exchange of title and proprietorship cannot occur if the deal is done through a POA and not using a sale deed.
The Supreme Court of India in 2011 announced that “a power of attorney is not an instrument of transfer concerning any right, title or interest in an immovable property”. Following the equivalent, the Indian Apex court coordinated the metropolitan bodies not to change or register properties dependent on such archives. The Supreme Court, notwithstanding, restored those legitimate exchanges that have been brought out through GPA would be lawful.
The court additionally stated, “Nothing keeps influenced parties from getting registered deeds of conveyance to complete their title. The said exchanges may likewise be utilized to acquire explicit execution or to protect ownership under Section-53 An of the Transfer of Property Act, 1882.”
Because of this Supreme Court order, various states across India disallowed the registration of properties that were sold through a GPA. Besides, this landmark judgment of the Supreme Court has just assisted with limiting the free progression of black money somewhat in the real estate in India, where property titles are controlled way time and again. Other than this, because of this, a ton of property exchanges where costs were rounded off till now will be influenced.
Notwithstanding, after a total restriction on such properties was forced, the Delhi government at long last consented to allow registration of properties for the legitimate proprietor’s spouses, children, siblings as well as any other family member or individual of trust of the enlisted proprietor.
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Every one should know this
“You’re off to great places, today is your day …
“You always pass failures on the way….
“No one is perfect that’s why pencils have erasers”….
“Winning doesn’t always means being first….
“You’re braver than you believe,and stronger than you seem, and smarter than you think”
It always seems impossible until do it
Keep smiling 😊
Mediation is an age-old procedure of dispute resolution rehearsed since vedic period. It is a low cost, keeping the issues, particularly family matters secret among three parties, two parties and the mediator. Also, the solution isn’t forced on any party, it is a solution that both the parties consented to. It, in this manner gives an effective solution in a tranquil way.
Alternate Dispute Resolution method for settling the dispute is generally new pattern in India. The mediation procedure in India is not a recently created technique for dispute redressal, it is an age-old process since vedic period. It is useful for both the sides – the courts are being somewhat less burdened with cases, and the parties are getting their issue settled rapidly with less problems and in a smoother way. In this manner, there has been made a significant situation for mediation in Indian Law.
The contrast between taking an issue to litigation and taking it for mediation process, is that in litigation, there is a blame game and the faults are to be demonstrated, depending that the Court will give the solution; and in Indian mediation, the issue gets settled through negotiation, where the solution is looked for with the assent of the parties in the wake of considering the demands of both the sides.
The alternate dispute resolution India comprise of following kinds of ADR in India -arbitration, conciliation, negotiation and mediation. Mediation in India is the most popular method among all the three procedures.
What is Mediation?
Mediation in India is a deliberate procedure where the contesting parties choose to commonly discover a solution for their legal issue by entering into an agreement and appointing a mediator. The decision-making power rests with the contesting parties, with the mediator acting as a buffer to bring them to a comprehension. The parties can recruit ADR legal counselors to represent them before the mediator and clarify the situation in a professional way. The difference between arbitration and mediation are that arbitration is a more formal process than mediation. An arbitrator should be officially appointed either beforehand or at the time of need. A mediator can be anyone, of any designation, can be appointed officially or casually depends upon the desire of the parties. The mediation law in India has been made easy to use and entirely adaptable.
Mediation India are divided into two types which are generally followed:
- Court referred Mediation:The court may refer a pending case for mediation in India under Section 89 of the Code of Civil Procedure, 1908. This kind of mediation is often used in Matrimonial disputes, particularly divorce cases.
- Private Mediation:In Private Mediation, qualified personnel work as mediators on a fixed-expense premise. Anyone from courts, to the general population, to corporates as well as the government sector, can appoint mediators to resolve their dispute through mediation.
Effectiveness of Mediation:
On occasion, even the court referred mediation, as it is a simpler and quicker procedure to get a resolution. Specially the divorce mediation in India is most common technique for mediation. The mediation in divorce cases, property cases, family matters, help to hold the issue constrained to the parties just, and doesn’t bring it before public, and reach to a solution maintaining the peace and harmony.
Process of Mediation in India
In most cases, parties willfully settle on mediation to commonly resolve their lawful issue, making mediation in India a party-centric and neutral procedure. A third party for example mediator is appointed who acts impartially in guiding the parties to mutually resolve their issues. mediation utilizes organized communication and negotiation where parties put their issues and solution for them before each other with the assistance of mediator. The person can be anyone the parties have chosen, or an ADR lawyer concurred on by the parties.
The mediator them helps them to arrive at a conclusion based on their agreed terms. As it is a voluntary procedure and the parties hold all the rights and powers, any parties can withdraw from the procedure of mediation at any stage without stating an explanation.
Mediation encourages the parties to take an interest in dispute resolution actively and directly whereby they clarify the facts of their dispute, set down options or approaches to determine the dispute and settle on a final decision by coming to a settlement. The mediation procedure in India follows to all the general guidelines of evidence and, examination and cross-examination of witnesses. To know all the legal rights, you have over the issue, you can discuss with your ADR lawyer how you can set up your demands and negotiate it with the other party.
One of the essential advantages of mediation in India is that it is a totally private method of dispute resolution. Only the contesting parties and the mediator are involved, making the issues of the parties personal and private. The mediator is an impartial and autonomous third party, who helps the parties in finding their own solution. All statements made during the procedure of mediation in India can’t be disclosed in civil proceedings or other place without the prior consent of all parties in writing.
In Mediation in India, the mediator works together with parties to encourage the dispute resolution mediation process and doesn’t adjudicate a dispute by imposing a decision upon the parties. A mediator’s role is both facilitative and evaluative. A mediator encourages when he deals with the interaction between the parties, encourages and promotes communication between them and manages interference and outburst by them and motivates them to arrive at a friendly settlement.
Procedure of Mediation in India is completely confidential as any information outfitted by any parties and a report arranged or submitted is forbidden and sealed. Any admission made during mediation can’t be utilized in some other legal dispute and any information provided to the mediator cannot be disclosed to the other party unless the other party explicitly allows the mediator to do as such. The mediator cannot be called as a witness to testify in any court case and cannot disclose any information related to the proceedings.
Mediation as an alternative dispute resolution process has been successfully utilized in matrimonial disputes and corporate affairs to locate a prompt solution which isn’t just efficient and financially effective yet additionally keeps the whole dispute process private. The procedure of mediation in India is adaptable as it works two-ways by helping disputing parties to mutually resolve their issue and reducing the burden of pending cases on the courts.
Today is the time for being digital . Everything is becoming digital these days. Today is the time for globalisation. These Technologies and techniques has a huge impact on our day to day work
Technology has brought many changes in various fields of work .so, why should our courts be left behind in this race?
Indian courts are very well known for their pending cases. There are huge number of cases pending in our courts. In India, there is a saying that Justice delayed is equal to justice denied. It means that if justice isn’t achieved at the right time, then there is no use of that justice
People have almost lose faith in the judiciary system. So, here is such a technique which helps in the administration of justice. To be in a race, an initiative has been taken by our courts which is Online Dispute Resolution. Basically, it means a solution to disputes by using digital techniques and technologies.
Online Dispute Resolution, is a latest communication method for the settlement of disputes between the parties.
Article 21 of the Constitution of India:
Under article 21 of the Constitution of India, it is being mentioned that, ‘No person shall be deprived of his life and personal liberty except by the procedure by law.
Case law: Hussainara khatoon vs. Home Secretary state of Bihar:
In this famous case, it was said that right to speedy trial is a part and parcel of right to life and personal liberty.
Traditional method of dispute resolution or Online Dispute Resolution?
With the change of time, one has to change itself as well. For many years we were dealing cases with the traditional methods. But COVID 19 has at least a good impact. With this, a new initiative has been emerged, which is Online Dispute Resolution. It’s an alternative to the old and old year’s method of dispute resolution.
Ok! I will ask you one question, Which takes more time, litigation filed in court or Online dispute Resolution!?
Think and you will get the answer why ODR is better!
Advantages of ODR:
- Apart from being convenient, it is time effective as well.
- Provides an efficient way of resolution of disputes.
- Cost effective
For example: Just think about 2 parties, who are at a huge distance from one another. So, ODR helps a lot in saving travel time.
It is a very creative method of resolution of disputes as generally the court proceedings are very formal and take much time, but this ODR method is very flexible.
It’s the best method for those parties who could not afford the high cost of litigation process. So ODR provides a relief in terms of cost as well.
- Speedy trial.
- Promotes speedy access to justice.
- ODR technique is very easy to access. It can be accessed anywhere from the world where internet is available.
- Apart from quick disposal of cases, the best advantage of ODR is that it will give employment to many arbitrators and advocates. This ODR can be proved boon in many cases.
Storage of voluminous data:
In India, one such issue which courts have to face is the storage of large voluminous data. But with the advent of ODR, this issue can be solved easily.
Disadvantages of ODR:
- Those people who lack in terms of technology, will be at disadvantage of using ODR technique.
- Due to some language issue, some people can also face some communication problem.
Mode of Doing Online Dispute Resolution:
For solving disputes, ODR uses a combination of online and offline methods.
Types of Online Dispute Resolution:
In this type of dispute resolution, a neutral person is appointed basically. In simple words, we can say that a third party person solves the disputes by firstly listening to the parties dispute and then trying to resolve the issue. And whatever mediator says, it’s up to the parties whether they want to accept on that term or not.
In this method, the parties approach the arbitrator and seeks his help for the resolution of the dispute.
Advantages of Arbitration:
- It is less formal
- It is time effective. As proceedings are completed in lesser time.
- This method is less complicated as well.
- This method saves travelling time as well as travelling expenses.
Negotiation means making some counter offer or some type of concession so that parties can come to an agreement.
Role of ODR Neutral:
The main aim of the neutral person is to solve the disputes between the parties. And in this process, he plays a very important role as firstly he discusses with both the parties about their main issue of dispute and then after listening to both the parties, he counsel both the parties to solve their dispute.
Characteristics of Online Dispute Resolution:
The proceedings under ODR are generally informal. Proceedings through Online Dispute Resolution are quite relaxing.
ODR is a very confidential process.
Significance of ODR:
COVID 19 pandemic is still continuing in India. Due to which many courts re closed. The importance of using Online dispute resolution lies in the fact that it’s a great step towards providing justice.
- Aim of ODR is to get everyone access to justice.
Impact of Online Dispute Resolution:
With the emergence of Online Dispute Resolution, the way of dealing cases has been changed.
With the emergence of this method, now the court is making use of this in solving all disputes matters. As court has to invest their lot of time, but this method of ODR has been proved to be a boon for them.
- It helps to solve disputes at a faster rate.
- This method has proved to be satisfactory.
- This method of ODR has eased the method for courts.
Role of Online Dispute Resolution in Covid 19 pandemic:
As the world is facing a huge pandemic this time. And till now it can’t be ascertain that when this Covid 19 situation will gonna be end!
Although in India, there is a problem of delayed justice. And this Corona virus has made this even worse. Already our courts are having a lot of pending cases.
But to avoid all this, a new initiative of ODR can be used.
As in Covid 19 pandemic, it is being advised to stay away from people at a distance to avoid the virus then such a technique like ODR is very useful. As by using Online Dispute Resolution, people does not have to appear in a court room, and that’s the best way of doing social distancing.
ODR which was earlier in an initial stage has now gained so much importance due to COVID 19.
Disputes are a way of life:
Disputes are a part and parcel of life. They are never gonna end. But the way for dealing with them can be changed. The way of resolving disputes can actually have a positive impact on the people. If justice is delivered to the people at right time, only then they can have trust on us.
Challenges of ODR in India:
There are many obstacles in the way of ODR in India, due to which it has not been able to grow itself.
- One such challenge is lack of communication.
- Inadequate techniques
- Negative mindset of lawyers
- Lack of literacy
- And the most important issue is about it’s admissibility in the court. Some judges don’t administer these type of proceedings.
Justice is the main aim of Law. And it’s the best time to change the way of providing justice. Because everyone knows disputes are still gonna come, but what we can do is to change their way of dealing.
The best way to handle disputes in a cost-effective manner is by using Online Dispute Resolution.
We can say that Online Dispute Resolution has wide scope but in India we need more of its implications in cases.
As everyone is adopting internet more and more in his life, then why court should stop itself from using the latest technologies in the matter of cases?
Justice is the necessity of the present time. Everyone should get justice at affordable costs. Our government, we people should ensure that justice is delivered to all those who need it.
India needs an effective mechanism through which ODR can be used.
Each and every child has by birth has capability to grew up and gain his full potential and contribute wholly towards the development of the society and its nation. The Indian constitution provides children there priority for their protection and providing proper and lawful care, treatment and even spreading education of adopting children for a friendly approach by the society. All the children borne are innocent by birth but due to prevailing circumstances and not getting proper guidance and upbringing there nature become aggressive and they get involved in serious crimes of the society.
If any child who have not completed the age of 18 years and does an offence which disturbs the public peace of the society Juvenile Justice Act 2015 sees the prima-fascia of the circumstances that whether the offence was committed with or without criminal intention. It may be that the child lacks behind the capability of judging the consequence of his crime.
Then under these conditions he should be given personal treatment which converts his mindset to lawful and social work and the treatment should be based upon his economical, physiological and social background upon seeing the circumstances [i]. It is believed that about 53% of children in India face some forms of sexual abuse in India.
According to POSCO Act 2012 child is any person who is below 18 years of age and does not have capability to understand the seriousness of the crime he had been committed.
There was a basic necessity of POSCO act as:
- The main aim of this act is to protect children from sexual offence in the society and establish a special court for rapid disposal of case and proper and delicate looking into the cases and being very sensitive matters to be looked upon.
- The best thing about this act is that it provides remedy and punishment even when sexual offence is against a boy and does not perceive discrimination between a boy and a girl.
There are basically 5 types of sexual offence which are recognized under POSCO act that are:
Penetrative sexual assault under section 4 with punishment upto imprisonment of life,then aggravated penetrative sexual assault under section 6 with punishment upto imprisonment of life, then sexual assault under section 8 which includes punishment upto 5 years, then aggravated sexual assault under section 10 which include punishment up to 7 years and at last sexual harassment under section 12 which include punishment up to 3 years.
For giving justice and stopping corruption to enter under POSCO act another body which is State Commission of Protection of Child Rights (SCPCR) has been authorized for monitoring the implementations in the act and to submit the activities in its annual report.
The more delay in disposal of cases with high number of reporting cases have made one thing clear in the mind of the people that children who are victim of sexual offence are not getting justice and proper remedies[ii].
The PIL filed by Bachpan Bachao Andolan (BBA) caught the attention of the whole country in which the major key issues that were to be made for improvement and implementation to it where time bound trial and slow disposal of cases. According to HAQ Centre for child rights in 2015 only 5% of the questions have addressed children problems and there solution in both the houses.
It is believed that the children who experience sexual exploitation have long term stress issue so the family, parents, relatives, NGOs can play a major role in preventing the abuse against children and given them proper education about inappropriate relations, difference between good touch and bad touch and even in sober conditions they should be educated about the self-defense for their safety purpose[iii].
Last year in Delhi an operation named NIRBHEEK means without fear was launched in order to educate the children about sexual harassment. So these small steps make a big count towards the development of the country.
We can reduce the child abuse by interacting more with our children specially when they are hesitating while telling us and should not put up a boundary of being elder and younger. We must try to look out the emotional and behavioral change and should not leave them in isolated or one-on-one situation and at last it’s our responsibility to safeguard their rights.
Have you ever looked out into the vast space that surrounds you and wondered about the Earth on which you live? It is interesting to know that what exactly happened in our universe, about 15 billion years ago. ● All matter in the universe was concentrated in one mass. ● This super dence and extremely […]UNIVERSE
The importance of Republic Day and why is it celebrated
India is a land of colourful festivities, but national festivals are something, which binds the entire nation together, imparting a message of ‘unity in diversity’.
January 26, which is marked as Indian Republic Day is a prominent national festival celebrated every year to commemorate the day when the constitution came into effect back in 1950. Most of us have grown up with fond memories of this day like hoisting the tricolour flags, watching the parade and the tableaus, celebrating the country’s independent spirit. But, do you know what is the importance of this day and why is it celebrated on January 26?
The importance of Republic Day
It was on this day 71 years ago, the Indian Constitution came into force and the country was declared the largest democracy in the world.
After 200 years of British rule, when India gained Independence from the United Kingdom on August 15, 1947, it did not have a permanent constitution of its own. It was felt that a written constitution would help to run the country more systematically and for that, a drafting committee was constituted, headed by Dr B.R. Ambedkar. It took almost 2 years, 11 months and 18 days for the committee to draft the constitution. After making all the necessary changes it was formally adopted on November 26, 1949, by the Constituent Assembly of India. However, it came into force on January 26, 1950, and since that day India started celebrating January 26 as Republic Day.
This date was specifically chosen as it marks the anniversary of Purna Swaraj Day, which was held on January 26, 1930. The Purna Swaraj resolution made on January 26, 1930, called for “complete freedom from the British rule”. The constitution gave India’s citizens the power to govern themselves by choosing their government. The Indian constitution declares India a sovereign, socialist, secular, democratic republic, assuring justice, equality, liberty and promoting fraternity to all its citizens.
How R-day is celebrated every year
A lot of effort is put towards organising events and celebrating Republic Day across the country. But the centre of attraction is always the grand event organised at the Rajpath in the National Capital. The event starts with the prime minister laying a wreath at the Amar Jawan Jyoti at India Gate, to remember soldiers who sacrificed their lives for the country. The president of India then hoists the flag at Rajpath every year, which is followed by a colourful parade showcasing the diversity of the country and military power. India’s military power is presided over by the Indian president, who is the Supreme Commander of the Indian Armed Forces. Assorted tableaus representing the colourful culture of different states, PSUs and other ministries are also a major attraction of the parade. The President of India also confers the military persons, citizens and children with bravery awards. Apart from this, at state and district level cultural festivals are organised every year on this day. It is a custom to have a foreign head of nations as the Chief Guest for the R-Day Parade at the national capital.
This article basically deals about the crimes against women . How the women are subjected to crime ,violence ,rape, sexual abuse, torture , dowry deaths psychological harassments , abetment to suicide and many more. Data on crime in India are published by the National crime records Bureau (NCRB). Crimes against women in India are gradually increasing as reported by the NCRB. Gender based violence has become a serious issue to such an extent that it has been catalogued as high impact health problem by the World Health Organization. Women are one of the most vulnerable groups in terms of violence.
As we all know that India is the second most highest population country after china. Nowadays crimes against women are becoming a major issue. This is all because of the patriarchal or male centered society where people think that a women should always remain within the four walls of their houses and should not raise any voice against injustice prevailing. In India, the sex gender system operates exposing girls and young women to different forms of violence which includes infanticide, kidnapping, sexual harassments, murder, homicide which restricts women from leading a dignified life.
According to the report by the National crime records bureau, every hour, at least two women are sexually assaulted and every six hours , a young married women is beaten to death, burnt or driven to suicide. As a result of such heinous crimes and violence women undergoes unbearable sufferings like self isolation, unemployment, income loss and fail to provide child care which is a grave concern. The notion that women are weak and dependent on men is deeply ingrained in our society.
In conclusion , violence against women creates a sense of insecurity and fear in the community. this problem can be solved by providing comprehensive care pro actively. A multi -dimensional and multi agency team including access to psychological support is to be made available to deliver care under one roof. And also implementing certain primary prevention programmes such as gender sensitization and sex education in all schools and colleges and also making women self aware about their rights so that they can be courageous or brave enough to fight for justice . Its now high time to break the silence and to provide respect which they deserve and to provide them an environment free from discrimination.