Wednesday, August 31, 2016

Succession Certificates: Why Everything People Know about Them is Probably Wrong & Why that May be a Good Thing

We all know what succession certificates are, or at least we think we do. The words ‘succession certificate’ brings to mind a document in nature of probate or letters of administration. Therefore, on the death of a member of a co-operative housing society, the society will usually require legal heirs to obtain a succession certificate, before entering their names as members of the society. Even statutory bodies like MIDC or CIDCO also follow the same practice. Even companies at the time of transmission of shares request legal heirs to produce a succession certificate before entering their names in the company’s register.

Monday, May 30, 2016

Annihilation of Caste: The Best Solution? (Part - II)

(This is the second part of a two-part article. First part can be found here.)
Relevance in Modern Times
Caste Untouchability India ConstitutionDr. Ambedkar refers to caste as an “anti-social spirit” i.e.  the “spirit of protecting its own interests.” Although the Constitution of India itself does not provide a definition of ‘caste’ there are just under a hundred references to it in the Constitution. The Constitution uses the term caste in two senses. Firstly, it is used in the term “Scheduled Caste,” usually along with ‘Scheduled Tribes‘, ‘weaker sections,‘ or ‘backward classes.‘ In this sense, caste consists of several groups and tribe. It includes those who endured social or economical discrimination at for centuries. These groups or tribes are those for whom certain special provisions of representation were made due to inter alia inadequate representation during British administration and to make up for  past social, economical and political inequalities as well. Secondly, the Consititution uses caste in articles prohibiting “discrimination on grounds of religion, race, caste, sex” and also, ‘class,’ ‘place of birth,’ ‘language,’ ‘descent,’ and ‘residence.’ In the first sense, caste is a curative measure to make up for historical inequalities. In second sense, seeks to bring about equality in society, with its focus on present and future scenarios, irrespective of the historical inequalities. However, in both senses, the word ‘caste’ functions, as an anti-social spirit protecting its own interests.
Under article 366 (24), of the Constitution “Scheduled Castes” has been defined as “such castes, races, or tribes or parts of or groups within such castes, races or tribes as are deemed under article 341 to be scheduled Castes for the purposes of this Constitution.” Clause 25 of the same article provides a similar definition for “Scheduled Tribe” and refers to article 342 of the Constitution. Article 341 and 342, state that “The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be” Scheduled Caste and Scheduled Tribe, respectively.  Thus, the scope of the terms scheduled caste and scheduled tribes are not fixed. It is dynamic and can easily be widened, narrowed and changed. The framers of the Constitution probably understood that caste may in the future not have the same meaning it did then, and the safeguards must be provided for such a contingency. These provisions look after the apprehensions Dr. Ambedkar put forward in Annihilation of Caste, allowing for discretion to the Government, whenever it felt necessary to exercise the powers under Article 341 and 342.
Dr. Ambedkar’s views on inter-caste marriage as the remedy to destroy caste are still applicable even today. People are not only forced by family to marry within their caste, but preferably also within sub-castes. Incidents of honour killings inspired by inter-caste marriages are reported frequently in the newspapers.
In 2001 at a United Nations human rights conference Dalit activists pressed for a resolution connecting the treatment of “untouchables” to race-based oppression. However, the same failed due to rigorous opposition from official Indian delegates. They argued that the treatment of lower castes differed from the scenario in apartheid South Africa, since the Constitution in India did not promote, an in fact prohibited, untouchability and caste discrimination. The same view was also taken by renowned sociologists such as Kevin Reilly, Stephen Kaufman and Angela Bodino.
In December 2006 Mr. Manmohan Singh, the then Prime Minister of India, became the first leader of India  to publicly compare the condition of  low-caste Hindus with that of black South Africans under apartheid thereby opposing the stance taken by the previous BJP-led government. "Even after 60 years of constitutional and legal protection and support, there is still social discrimination against Dalits in many parts of our country," he said. "Dalits have faced a unique discrimination in our society that is fundamentally different from the problems of minority groups in general. The only parallel to the practice of untouchability was apartheid."

In ‘Annihilation of Caste’, Dr. Ambedkar makes several articulate submissions with respect to caste. He asserts the various contradictions and irrationalities that exist in the caste system:
 “It must be a source of silent amusement to many Non-Hindus to find hundreds and thousands of Hindus breaking Caste on certain occasions, such as railway journeys and foreign travel, and yet endeavoring to maintain Caste for the rest of their lives”
Thus, the rules regarding caste were very often broken and ignored by the higher castes, when convenient and then would be followed and preached again when it became convenient. Thus, the rules governing caste were not concrete and caste as a concept was purely abstract. This constant flux in the nature of the people’s adherence to the caste system represented that the caste system was not something which could be controlled or reformed. 
It is true that a legal remedy by itself cannot solve  a social issue. Change brought about by change in society’s mentality is far more lasting. However, it cannot be ignored that legal remedy itself is also necessary and the various laws prohibiting caste discrimination and untouchability have benefited the nation greatly. Perhaps one day Article 17 of the Constitution and the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 may become simply namesake and the concept of untouchability only found in history books, but that day is not today.
Keeping in mind the literacy rate in India in 1936 and the wide-spread practice of untouchability, Dr. Ambedkar’s views and apprehensions were well founded.  Today, the vast majority of the population condemns untouchability and the trend is rapidly turning in favour of equality of all castes. Thus, texts promoting untouchability are understood to be from a different time and the same have no place in a free world.  All this has only proved Dr. Ambedkar’s submission that caste could not, and should have not, been only reformed, but completely annihilated. Thus, it can be said that Dr. Ambedkar solution to the issue of caste was correct; however, his manner of presenting the solution was such that people were reluctant to appreciate it. Dr. Ambedkar wrote in great length about what he meant by ‘destruction of religion’ and even he knew that people would find the concept revolting, yet the use of the very phrase itself would make most turn a deaf ear to entire notion. Dr. Ambedkar has been criticized for being too blunt and plain. But in some cases this same plainness of speaking has proved to move the people.
 In light of the aforesaid, it is submitted that the ‘Annihilation of Caste’ has deeply influenced social reform in our country and the principles laid down in it are capable of being applied to several other social problems which we may face in the future.
“The ancestors of the present-day English fought on one side or the other in the wars of the Roses and the Cromwellian War. But the decendents of those who fought on the one side do not bear any animosity— any grudge against the descendents of those who fought on the other side. The feud is forgotten. But the present-day non-Brahmins cannot forgive the present-day Brahmins for the insult their ancestors gave to Shivaji. The present-day Kayasthas will not forgive the present-day Brahmins for the infamy cast upon their forefathers by the forefathers of the latter. To what is this difference due ? Obviously to the Caste System. The existence of Caste and Caste Consciousness has served to keep the memory of past feuds between castes green and has prevented solidarity.”

(This is the second part of a two-part article. First part can be found here.)
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Monday, May 23, 2016

Annihilation of Caste: The Best Solution? (Part - I)

(This is the first part of a two-part article. Second part will be coming soon.)
“...Turn in any direction you like, caste is the monster that crosses your path. You cannot have political reform, you cannot have economic reform, unless you kill this monster.”
-         Dr. B.R. Ambedkar

Annihilation of Caste AmbedkarSome of the profound issues of caste discrimination were raised for the first time by Dr. Ambedkar in his undelivered presidential speech “Annihilation of Caste”. The speech was prepared for the annual conference of the Jat-Pat Todak Mandal, a society for abolition of caste system, at Lahore. Prior to the date of the conference, Dr. Ambedkar wrote the speech and sent it to the anti-caste organization to enable them to print and distribute the same. The Mandal insisted on deletion of some passages of the speech, however, Dr. Ambedker declared that he "would not alter a comma”. The conference was withdrawn owing to the “unbearable” views expressed in the speechIn May 1936 Dr. Ambedkar self-published and distributed 1,500 copies of the text. The second edition includes a preface; a prologue, including the correspondence between him and the Mandal; and two appendices, which includes Mahatma Gandhi's review, “A Vindication of Caste” and Dr. Ambedkar's reply to Mahatma Gandhi.

Wednesday, May 11, 2016

Critical Review of the Lokpal and Lokayuktha Bill, 2011

Corruption is a malevolent practice that has to be dealt with very strictly, but  India is one of the most corrupt nations on the globe. Corruption has been a part of the society since the beginning. The fundamental idea of lokpal is borrowed from ombudsman, which has proved to be very effective in keeping a check against corruption.

The Lokpal and Lokayuktas Act is perhaps the main enactment ever, which has been so broadly talked about, both inside and outside Parliament. Thus, generated so much awareness in the public regarding the need to have an effective organization of Lokpal to handle corruption. However, the act passed hitherto is verbose, loaded with negatives and has various cross references.

Monday, April 18, 2016

Buy Back of Shares by Private or Unlisted Company

The provisions relating to buy-back of securities, under the Companies Act 2013 namely sections 68 to 70, which have been notified, have now repealed the provisions relating Companies Act, 1956.

Points to be noted:
1. A company may buy-back its own shares or other specified securities out of—
             (i) its free reserves; or
             (ii) the securities premium account; or
            (iii) the proceeds of any shares or other specified securities:

Thursday, April 14, 2016

Scope of Re-examination under Indian Evidence Act

Witness cross re-examination to kill a mocking birdWith increasing trend of appointment of Court commissioners to overlook witness examinations, lawyers are required to be more vigilant during depositions. Earlier, if any question beyond the scope of re-examination was put to a witness, the Judge would generally not permit such question to be asked, notwithstanding a lack of objection from the opposing party. While reading a commissioner’s report, such a fact may not strike the Judge at all. If an objection to the question by the opposing party has not reflected in the report, rejecting such portion of the deposition may slip the Judge’s mind entirely and that portion of the evidence may remain on record till the proceedings are disposed of. Thus, it is essential to properly understand the scope of re-examination of witness.

Tuesday, April 12, 2016

Procedures you need to know: Voluntary Winding Up of LLP

A. Making of Declaration
Ø  The majority of its designated partners (being not less than two) must make a declaration in Form No. 2 verified by an affidavit to the effect that the LLP has no debt or that it will be able to pay its debts in full within such period, as may be specified in the declaration, but not exceeding one year from the commencement of the winding up.

Ø  However, such declaration shall have no effect for the purposes of Limited Liability Partnership Act, 2008 (“the Act”) and the Limited Liability Partnership (Winding up and Dissolution) Rules, 2012, (“the Rules”) unless —

Saturday, April 9, 2016

Over 750 Office Space Leases in Mumbai to Expire in 2016

The year 2016 is the year for taking up offices on lease basis. As per research conducted by PROPSTACK, a commercial real estate information and analytics company, the sums involved in the lease renewal, consisting of an average period of thirty-six months, will be approximately Rupees 50 Crore a month. Although, 77% of 750 office lease renewal are below 5,000 sq. ft., the leases range from as low as 500 sq. ft. to 2,35,000 sq. ft.
The Information Technology sector (which includes Information Technology enabled Services sector) and Banking, Financial services and Insurance sector continue to dominate the leasing activity in Mumbai. “Mumbai has remained a financial capital hub where IT-ITeS and BFSI companies have continued to dominate the office space take-up. Last year BFSI, manufacturing and pharmaceutical sector played a major role in leasing apart from the technology firms. This trend is expected to continue in 2016 as well,” said the director of PROPSTACK, Raja Seetharaman. 

Monday, December 7, 2015

Capital Punishment, the Need or Necessity

The present condition in India is such that one should support the abolishing of capital punishment in all cases, except for cases in which public conscience and national security is at stake. Crimes such as treason, rape and mutiny tend to create public outrage in the society. The Supreme Court in its landmark judgment and the legislature in amending the Code of Criminal Procedure in 1976 made it clear that death sentence would be prescribed only in rarest of the rare case.

Sunday, December 6, 2015

Judicial Independence or Judicial Supremacy?

The Supreme Court has recently strike down NJAC (National Judicial Appointments Commission), a legal body that decides the appointment of Judges of Supreme Court and High Court. The Court in its categoric statement, held that the NJAC was ultra vires of the basic structure of the constitution, for not allowing Judicial to enjoy its independence, for reasons of unwarranted interference in deciding the appointments by the Executive. Before getting into the merits of their arguments, let’s just understand why the NJAC was made in the first place?