New Consumer Protection Bill 2019

For the first time in 32 years, the Ministry of Consumer Affairs and Food Distribution introduces a bill in Lok Sabha to replace the Consumer Protection Act, 1986.

Now Online retailers, celebrities can't fool the Consumers.
Source: #BrandEquity

A three-decade-old law is being changed to give more powers to the consumer. The Lok Sabha has passed the Consumer Protection Bill 2018 which will now go to the Rajya Sabha. The new law will replace the archaic Consumer Protection Act 1986.

The new law will revolutionise consumer rights in India by investing consumers and agencies with a lot more power than they currently have.

Below are the highlights from the Bill:

1. The Bill proposes an executive agency, the Central Consumer Protection Authority. The agency can intervene whenever it feels necessary to protect consumers from unfair trade practices. It can also launch class action against a company, besides ordering recall or refund of products. The agency is designed on the lines of highly effective US Federal Trade Commission. 

2. The Bill introduces a new concept of class action, which means the liability of manufacturers and service providers will not be limited to one or a group of consumers but towards all consumers. All affected consumers become beneficiaries in a class action suit. 

3. The manufacturer, producer and even the seller will be liable for any personal injury, death or damage resulting from defects in manufacture, construction, design, formula, preparation, assembly, testing, service, warning, instruction, marketing, packaging, or labelling of any product. 

4. The Bill proposes to remove the current structures for adjudicating consumer disputes at the district, state and national levels. It will only make them more powerful.

5. Consumer mediation cells will be attached to consumer commissions at all levels for resolution of disputes so that the commissions do not get bogged down in too many cases.

6. The Bill takes into account e-commerce too. Currently, a consumer can initiate legal action against a seller only at the place where transaction has taken place. In the new law, a consumers can file a complaint electronically or in the consumer court at his place of residence. This new law will simplify consumer disputes adjudication process for faster disposal of grievances through filing of complaints by a consumer from his place of residence, e-filing and video conferencing for hearing. 

The Bill introduces an additional consent layer requiring online marketplaces to add a tab on their platforms seeking express consent from customers at the time of checkout to be able to access and use their information.
E-commerce firms would have to disclose their business details and seller agreements, apart from also disclosing how they use consumer data. The Bill deems e-commerce platforms as service providers instead of only intermediaries, thus increasing their liability. 

7. The Bill also holds endorsers of products liable in addition to manufacturers. “Any manufacturer or service provider who causes a false or misleading advertisement to be made which is prejudicial to the interest of the consumers shall be punished with imprisonment for a term which may extend to two years and with fine which may extend up to 10 lakh rupees,” the Bill says. Offences may lead to a jail term of 10 years and a fine of up to Rs 50 lakh. For celebrities involved in misleading advertisements, there will be penalties but no jail term. 

8. The Bill also addresses ‘composite supply’ or bundling of services, wherein platforms that offer travel services and bundle services such as hotel stays and airline tickets will also have to take liability for all the services. 

9. To discourage frivolous complaints, the Bill proposes a penalty from Rs 10,000 to Rs 50,000. 

Also see:
1. https://indiacorplaw.in/2018/12/consumer-protection-bill-2018-paradigm-shift.html?utm_source=dlvr.it&utm_medium=twitter

2. Changes In Consumer Protection Bill 2018 That You Should Know https://www.goodreturns.in/classroom/2018/12/changes-consumer-protection-bill-2018-that-you-should-know-805846.html?utm_source=article

3. https://www.inreportcard.in/news-list-detail.aspx?opedid=1547

Fugitive Economic Offenders Bill 2018

The Fugitive Economic Offenders Bill, 2018 was introduced in Lok Sabha on March 12, 2018. 

It seeks to confiscate properties of economic offenders who have left the country to avoid facing criminal prosecution.

Fugitive economic offender:  A fugitive economic offender has been defined as a person against whom an arrest warrant has been issued for committing any offence (listed in the schedule).  Further the person has: (i) left the country to avoid facing prosecution, or (ii) refuses to return to face prosecution.  Some of the offences listed in the schedule are: (i) counterfeiting government stamps or currency, (ii) cheque dishonour for insufficiency of funds, (iii) money laundering, and (iv) transactions defrauding creditors. 

The Bill allows the central government to amend the schedule through a notification.

Application:  A director or deputy director (appointed under the Prevention of Money-Laundering Act, 2002) may file an application before a special court (designated under the 2002 Act) to declare a person as a fugitive economic offender.

  The application will contain: (i) the reasons to believe that an individual is a fugitive economic offender, (ii) any information about his whereabouts, (iii) a list of properties believed to be proceeds of a crime for which confiscation is sought, (iv) a list of benami properties or foreign properties for which confiscation is sought, and (v) a list of persons having an interest in these properties.
Upon receiving an application, the special court will issue a notice to the individual: (i) requiring him to appear at a specified place within six weeks, and (ii) stating that a failure to appear will result in him being declared a fugitive economic offender.  If the person appears at the specified place, the special court will terminate its proceedings under the provisions of this Bill.

Attachment of property:  The director or deputy director may attach any property mentioned in the application with the permission of a special court.  Further, these authorities may provisionally attach any property without the prior permission of the special court, provided that they file an application before the court within 30 days.  The attachment will continue for 180 days, unless extended by the special court.  If at the conclusion of proceedings, the person is not found to be a fugitive economic offender, his properties will be released.

Declaration as fugitive economic offender:  After hearing the application, the special court may declare an individual as a fugitive economic offender.  It may confiscate properties which: (i) are proceeds of crime, (ii) are benami properties in India or abroad, and (iii) any other property in India or abroad.  Upon confiscation, all rights and titles of the property will vest in the central government, free from all encumbrances (such as any charges on the property).  The central government will appoint an administrator to manage and dispose of these properties.

The Bill allows any civil court or tribunal to disallow a person, who has been declared a fugitive economic offender, from filing or defending any civil claim. 

Powers of the director:  The director or deputy director will have the powers vested in a civil court.  These powers include: (i) entering a place on the belief that an individual is a fugitive economic offender, and (ii) directing that a building be searched, or documents be seized.

Appeal:  Appeals against the orders of the special court will lie before the High Court.

 Source: prsindia.org

FEOB lists offences under 15 Indian laws including IPC and CGST Act. The government has multiple legal options to attach the property of economic-offenders.

The Indian government instead should have focussed upon the extradition treaties with different countries , so  that the option of fleeing the country would be no longer seen as the best way out. Since independence, India has signed treaties of extraction with 48 countries and extradition arrangements with 9 more. However this is not enough.

Until the extradition treaties are given priority the FEOB will not effective.

Cabinet approves the Commercial Courts, Commercial Division and Commercial Division of High Courts (Amendment) Bill, 2018

The Union Cabinet has approved the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Bill, 2018 for introduction in the Parliament.

The Bill seeks to achieve the following objectives:

• The Bill brings down the specified value of a commercial dispute to 3 Lakhs from the present one Crore. Therefore, commercial disputes of a reasonable value can be decided by commercial courts. This would bring down the time taken (presently 1445 days) in resolution of commercial disputes of lesser value and thus further improve India's ranking in the Ease of Doing Business.

• The amendment provides for establishment of Commercial Courts at district Judge level for the territories over which respective High Courts have ordinary original civil jurisdiction i.e in the cities of Chennai, Delhi, Kolkata, Mumbai and State of Himachal Pradesh. The State Governments, in such territories may by notification specify such pecuniary value of commercial disputes to be adjudicated at the district level, which shall 'not be less than three lakhs rupees and not more than the pecuniary jurisdiction of the district court. In the jurisdiction of High Courts other than those exercising ordinary original jurisdiction a forum of Appeal in commercial dispute decided by commercial courts below the level of District judge is being provided, in the form of Commercial Appellate Courts to be at district judge level.

• The introduction of the Pre-Institution Mediation process in cases where no urgent, interim relief is contemplated will provide an opportunity to the parties to resolve the commercial disputes outside the ambit of the courts through the authorities constituted under the Legal Services Authorities Act, 1987 will also help in reinforcing investor's confidence in the resolution of commercial disputes.

• Insertion of new section of 21A which enables the Central Government to make rules and procedures for PIM.

• To give prospective effect to the amendment so as not to disturb the authority of the judicial forum presently adjudicating the commercial disputes as per the extant provisions of the Act.

With the rapid economic development there has been considerable increase in commercial activities and consequent steep rise in number of commercial disputes at domestic and international level. Increase of Foreign Direct Investment (FDI) and overseas commercial transactions have further contributed to a significant increase of commercial disputes.

With a view to address the issue faster resolution of matters relating to commercial disputes and to create a positive image particularly among the foreign investors about the independent and responsive Indian legal system, the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 was enacted and commercial courts were established at District Levels in all jurisdictions, except in the territories over which the High Courts have original ordinary civil jurisdiction. These five High Courts i.e. the High Courts of Bombay, Delhi, Calcutta, Madras and of Himachal Pradesh, exercise ordinary original civil jurisdiction in regard to territories of cities of Mumbai, Delhi, Kolkata, Chennai and the territory of the State of Himachal Pradesh respectively. In such territories of these High Courts as per proviso to sub-section (1) of section 3 there are no commercial courts at district level and instead Commercial Divisions have been constituted in each of these High Courts.

The specified value of such commercial disputes to be adjudicated by the Commercial Courts or the Commercial Division of High Court, as the case may be is presently Rs. one Crore.

Ease of Doing Business is an index of World Bank which inter alia refers to the dispute resolution environment in a country which facilitates the investors in deciding for setting up of and operation of a business.

Enemy Property Amendment and Validation Act and it's effect on China - EconomicTimes

The amendment of the 49-year-old Enemy Property (Amendment and Validation) Act after which the Narendra Modi government plans to auction more than 9,400 properties of those who took citizenship of China has made China jittery. 

Chinese investment in India has grown rapidly in the past few years. China fears India can confiscate assets of its companies, such as Xiaomi and Lenovo, if the two countries enter a military conflict. Last year, Indian and China faced off for months over construction by Chinese troops in the Doklam region. Though the conflict was resolved, tension persists in India-China relations. 

"If China and India become involved in a military conflict, the assets of Chinese companies doing business in India may be confiscated by the Indian government," said an article in state-run Chinese news outlet Global Times. 

According to data provided in the report of the parliament select committee on the bill, there are 9,280 immovable properties belonging to Pakistani nationals encompassing 11,882 acres. The total value of immovable properties that are vested with the custodian stood at Rs 1.04 lakh crore. Movable vested properties consist of shares in 266 listed companies valued at Rs 2,610 crore; shares in 318 unlisted companies valued at Rs 24 crore; gold and jewellery worth Rs 0.4 crore; bank balances of Rs 177 crore; investment in government securities of Rs 150 crore and investment in fixed deposits of Rs 160 crore. 

Besides this, there are 149 immovable enemy properties of Chinese nationals with the custodian in West Bengal, Assam, Meghalaya, Tamil Nadu, Madhya Pradesh, Rajasthan, Karnataka and Delhi. 

Source:
https://m.economictimes.com/news/politics-and-nation/modis-amended-enemy-property-law-gives-jitters-to-china/amp_articleshow/62601031.cms

Book on Uniform Civil Code - Unveiling

Justice Santosh Hegde today (now) unveiled a book on #UniformCivilCode authored by  #DrShivanandJamdaarIAS at Karnataka Chitrakala Parishath Bangalore

Takeaways:

If only British rulers & later Nehru had shown the same determination on #UCC while enacting laws pertaining to Hindu personal law.

Encouraging Inequality on basis of religion, how correct? Historical basis of unequal practice cannot justify it.

Policies were enacted assuming that Minority sections would always abide by the law. And Majority would violate. Said Ms. SushilaChintamani introducing the Book.

Divisiveness of Indian society would have ended if #UCC was enacted in 1955 itself.

This book of  Dr. Shivanand Jamdaar IAS should be Translated in more languages to reach all Indians.

https://t.co/C0Dh81oVYw

Maharashtra State Authority to hear complaints against Builders - country first

With complaints against Builders riding in numbers, the Maharashtra State Government has decided to constitute a Housing Regulatory Authority to safeguard the interests of homebuyers. 

The authority will be a quasi-judicial body and resolve disputes related to the housing sector. Four benches are likely to be established to hear the cases at different cities in the state.

With this decision, Maharashtra, with the highest ratio of urbanisation and real estate activities in the country, will become the first state to constitute such an authority,

The Maharashtra Housing (Regulation and Development) 2012 was passed two years ago and Presidential assent came in 2014.

The deadline to frame rules for the authority is October 31 and the process is underway.

An officer attached with the housing department, said, 

"There are over 30,000 disputes pending before various courts and forums regarding alleged malpractices by developers, Most of the complaints from Mumbai and Pune are because of the high density of housing construction activities. After drafting the rules, objections and suggestions will be invited from the people to make more reforms before constituting the body."

"The state has received the official nod from the Centre to set up its own regulatory authority for the state. We are in the process of forming rules and regulations after which the authority will come into existence," he added.

Source: http://www.punemirror.in/pune/civic/Govt-body-to-solve-homebuyers-woes/articleshow/54299390.cms

Ordinance promulgated to amend the Enemy Property Act, 1968

The Enemy Property (Amendment and
Validation) Ordinance, 2016 was promulgated on January 7, 2016.

 The Ordinance amends the Enemy Property Act, 1968 and the Public Premises (Eviction of Unauthorised Occupants)
Act, 1971.
After the India-Pakistan wars of 1965 and 1971, the central government took over the properties (called ‘enemy properties’) of those who migrated from India and became citizens of Pakistan (i.e., ‘enemy’). These properties were vested in the office of the ‘custodian of enemy property’, instituted under the central government.
 The 1968 Act regulates rights over these enemy properties, and the powers of their custodian.
In July 2010, an Ordinance was introduced to amend the Act (subsequently lapsed).

 This Ordinance clarified that the office of the custodian will retain its power over enemy properties, even after the enemy dies, or if the legal heir is an Indian citizen, or the enemy changes his nationality, etc.
The 2016 Ordinance also provides for the same.

In addition, it amends the Act to broaden the definition of enemies. For instance, the Act provided that a citizen of India cannot be considered an enemy. Under the 2016
Ordinance, legal heirs of enemies (even if they are Indian citizens) will be considered enemies.

This will mean they will not be able to inherit enemy properties, or enjoy any benefits arising from them.

The 2016 Ordinance also modifies powers of the custodian of enemy property. For example, it adds the power to fix and collect rent, and evict unauthorised occupants from such properties.

For the purpose of allowing regulation of
unauthorised occupants in case of enemy
properties, the Ordinance also makes some
amendments to the 1971 Act.

The 2016 Ordinance has retrospective effect
from the date of commencement of the 1968 Act. This is to ensure that transfers of enemy property that had taken place before its promulgation are deemed ineffective if they violate its provision. All such properties will continue to vest with the custodian.
For a comparison of the two Ordinances, please see here
-

Draft Rights of Transgender Persons Bill, 2015 released - PRSIndia

Ministry of Social Justice and
Empowerment released the draft Rights of
Transgender Persons Bill, 2015 in January
2016.

 The draft Bill seeks to ensure overall
development and welfare of transgender persons.
A transgender person is defined as a person whose gender does not match with the gender assigned to them at birth, irrespective of whether they have undergone sex reassignment surgery or hormone therapy, etc.

Key provisions of the draft Bill include:
 Certificate of identity: A certificate
indicating that a person is a transgender
person will be issued by a state level
authority, on the recommendation of a
district screening committee (comprising
District Magistrate, psychologist,
psychiatrist, representatives of the
transgender community, etc.). The
certificate may be used to indicate gender on official documents, like ration card and
Aadhaar card. Transgender persons will
have the option to identify as ‘man’,
‘woman’ or ‘transgender’ in all such cases.
 Rights of transgenders and duties of
government: The central and state
governments must take steps to ensure that
transgender persons enjoy right to equality,
Land protection from discrimination. The
government must also ensure that
transgender persons have accommodation,
protection from torture, etc.
 Health: The central and state governments must take steps to provide health facilities to transgender persons including separate HIV  surveillance centres, free of cost sex
reassignment surgeries, etc.
 Education: Educational institutions funded or recognised by the government will have to admit transgender students without discrimination, provide accommodation and necessary support.
 Employment: Public or private
establishments (including companies,
unions, factories, etc.) will be prohibited
from discriminating against transgender
persons in matters related to employment
including recruitment and promotion.
Further, transgender persons may be
declared a Backward Class so that they can
be entitled to reservation under the ‘Other
Backward Class’ category.
A private member Bill related to rights of
transgender persons was passed by Rajya Sabha in April 2015, and is currently pending in Parliament.

Right to Repair - The Concept

The Cars these days have to be taken to the specific Brand Service centre, and you are literally at their mery of their Monopolistic Trade Practices.
These are the Scenarios in a Monopolistic Car Market:

• "We owned a Honda CRV which we had to take to the dealer to find out what was wrong. The dealer charged us $100 to look at it and tell us we needed a new $3,400.00 transmission. They said it would be dangerous to drive it away. We took it to a transmission guy who fixed it for $80.00!!!! [...]" 
• "Consumers need to have a good look at this and understand how convenient it could be to have a qualified local repair facility perform work on their vehicles. For instance in most cases when entering a dealership for repairs a service writer will take your information and then PUFF your car is gone into space. [...]"
• "i own a 2000 volvo that ran fine but the service ligt was on and i needed a master key for the trunk , when i took it to the dealer i got a key for 90.00 and they told me the service light was on because of the electronic module for the shifter and [...]" "First let me say I have never been moved to action on a bill until today. As an owner of a (2008 A6 Audi) I scheduled service for 3 basic items and one intermittent issue with AM/FM radio reception that I asked to be looked at. The items, you ask? Oil change, battery in my [...]"
• "I would like to ask you to support the “Right to Repair” legislation….I love my local mechanic, and trust him to do what is right for my car. As Massachusetts “patriots”, we deplore the attempt to remove another RIGHT, another FREEDOM!! Please stand with us!!!"
• "My wifes car (1998 Subaru Forester) had a failed water pump, and ABS light on . I called the Subaru dealer and was told the Timing belt had to be changed as well as H2o pump as the pump is behind the belt: Water pump= $500.00 Timing belt $700 to $800 depending if they had [...]"
• "Took my Subaru in for a check-up. It had a flat tire and the dealership tried to charge me double the tire cost!"
• "Our 2001 VW Eurovan has had a running problem for some time. We got a free diagnoses from a VW dealer in the mail and decided to take advantage. The result was a number of faults indicating major engine internal repair and timing chain replacements as “only the beginning of problems” that would result in [...]"

Here comes the Need to assert our "Right to Repair"

Right to Repair, is a name for several related proposed bills in the United States Congress and several state legislatures which would require automobile manufacturers to provide the same information to independent repair shops as they do for dealer shops. Versions of the bill have generally been supported by independent repair and after-market associations and generally opposed by auto manufacturers and dealerships. Since first introduced at the federal level in 2001, no version of the legislation has become law, until the Massachusetts legislature passed H. 4362, a Right to Repair bill on July 31, 2012.

Subsequent to bill passage the Automotive Aftermarket Industry Association, Coalition for Auto Repair Equality, Alliance of Automobile Manufacturers and the Association for Global Automakers signed a Memorandum of Understanding that is based on the Massachusetts law and which would commit the vehicle manufacturers to meet the requirements of the Massachusetts law in all fifty states.

Global Right to Repair

The European Union has passed Right to Repair and an aggressive effort is currently underway in Canada. Right to repair is clearly a global issue whose time has come.

What Right to Repair Does:
 
Reaffirms the owners’ right to repair their automobile and keep their families safe.
Promotes consumer safety by allowing owners or their auto technicians’ access to the computers that control the systems and components that affect the safe operation of their automobiles.
Permits owners to choose the repair shop and the replacement parts to service and maintain their vehicles.
Authorizes the Federal Trade Commission (FTC) to promulgate regulations to protect consumers and to promote competition in auto maintenance and repair. 

What It Does Not Do
 
It does not take a manufacturer’s intellectual property.
It does not affect the dealer’s warranty agreement with the vehicle manufacturers.
It does not require manufacturers to disclose manufacturing processes or trade secrets. About The Right to Repair Act

The Right to Repair Act is bipartisan legislation that would require automakers to provide the same service information and tools to independent auto and maintenance shops, as well as to consumers, that the automaker dealership service centers receive.
 
Right to Repair legislation does not attempt to restrict motorists from choosing car dealerships, it simply ensures that vehicle owners have a choice when deciding where to take their vehicles for repairs and what parts are best to use in maintaining their vehicles. The Automotive Aftermarket Industry Association and the Coalition for Auto Repair Equality urge Congress to support the Right to Repair Act to give consumers a choice and keep repair costs down. It's the right thing to do for consumers, for business and the economy.

Now that India too is crowded with foreign Brands of specialized Cars, its high time, We, The People, demand our Right to Repair.

No Relief for the Rape Victims in India... - The Hindu

India's rape crisis in 2010 (PDF)

The reason is simple: in the six decades since Crime in India first appeared, the capacities of police to investigative crimes have incrementally diminished —and the social attitudes, that deem rape a crime not worthy of devoting more resources to, haven't changed.
POOR INVESTIGATION MEANS NO JUSTICE

Evidence that investigative incompetence is leading to diminishing conviction rates across the board isn't hard to come by: convictions for murder, for example, also showed a steady decline from 44.28% in 1973 to 36.73% in 2010.

Lawyers say the reason for the relatively high conviction rates for crimes like murder or housebreaking is that witnesses can be found — or, sometimes, invented by investigators. “The whole investigation system now revolves around a witness,” says New Delhi-based lawyer Rebecca John. “In crimes like rape, there usually isn't one.”

For over five decades now, the Supreme Court has held that the testimony of rape victims doesn't have to be corroborated, for example by forensic evidence, for a conviction to be won. That does not, however, appear to have pushed up the victim's chances of getting justice.

“Let's put it this way,” says a senior New Delhi-based police officer, “it doesn't take a lot for a perpetrator to create reasonable doubt — say, an unethical lawyer and a couple of friends willing to lie about his whereabouts.”

Hard-nosed investigation would minimise this kind of fraud — but there just aren't enough resources. India needs 250 police personnel per 100,000 citizens, twice the 133 per 100,000 available in 2010. Figures released by the Ministry of Home Affairs suggest upwards of 500,000 personnel have been recruited in recent months, but the infrastructure to train them in investigation doesn't exist.

The authors of the 1953 report had, in similar circumstances, warned that “large-scale recruitment in all the ranks of the police has diluted quality to a great extent, and consequently, the standard of work has fallen.”

“I think you have to accept,” says the former Andhra Pradesh Director-General of Police HG Dora, one of India's most respected policing experts, “that the police is stretched to breaking point.”

Figures show victims of sexual crimes understand this ugly fact. From 1973 to 1983, rape complaints doubled — and then slowly plateaued out, growing at levels close to the increase of the population. Even in western countries where the social stigma associated with filing a complaint is relatively low, many victims choose suffering in silence over suffering in a court. In 1991, a United States survey placed the reporting rate for rape at 55%; a similar Canadian investigation in 1985 placed the figure at 38%.

In 2000, a national survey in the United Kingdom concluded that 4.9% of all women had experienced at least one rape or sexual assault. In Ireland, Sweden and Germany, separate studies suggested that far higher numbers of women had been attacked, ranging from 25% to 34%.

No similar nationwide survey data is available in India, though a 2007 government study found that 53% of children polled reported having experienced “one or more forms of sexual abuse.”

The NCRB figures also show one important reason why victims have an incentive to remain silent: the rapists are mainly friends, even kin. Even though the media overwhelmingly reports on dramatic cases involving attacks by strangers, all but four States reported that nine out of 10 alleged perpetrators or more were known to the victim. In Delhi, that figure was 96.6%.

Protracted ‘acquaintance rape' trials allow for pressure to be brought to bear on victims or material witnesses to withdraw their testimony. In 2010, the numbers of alleged perpetrators either in custody or out on bail awaiting trial had grown to a staggering 89,707, up from 4,991 in 1973 — numbers which point to endless courtroom delays.

The north-east exception

Fixing policing and fast-tracking trials, though, might not alone be enough to influence outcomes. The NCRB data shows that the status of women in society may influence outcomes just as much as policing. The highest conviction rates were recorded by a cluster of States in the north-east, where data on literacy, nutrition and gender ratios all suggest women have a relatively high social status.

Nagaland convicted 73.7% of alleged perpetrators, Arunachal Pradesh and Sikkim both 66.7% and Meghalaya 44.4%. Mizoram, which convicted a staggering 96.6 percent of alleged perpetrators, also had the highest level of rape reported to police — 9.1 per 100,000 residents. This suggests that community pressure on the criminal justice system forces it to take rape seriously.

Some believe that better laws could help address these problems — but the evidence isn't persuasive. In a 1992 critique of Canadian rape-law reforms, criminologists Julian Roberts and Robert Gebotys found they had simply “attract[ed] more victims into the system, rather than changing the way that the system functions.”

Susan Estrich, writing in the Yale Law Review in 1986, noted that “studies within particular jurisdictions suggest limited, if any, changes in the processing of rape cases in the aftermath of major law enactments.”

India's problems aren't unique: in the United Kingdom, the government has been working to reverse an appalling conviction rate of 5.7 per cent, measured against complaints, and 33 per cent, when measured, as in India, against cases brought to trial.

The fact is, though, that much of the world has the tools, and the intent, needed to address the problem. In India, there is little so far but debate.

Legal Practitioners Act draws a flak all over India

Bar Councils across different states have opposed the draft Legal Practitioners (Regulation and Maintenance of Standards in Profession, Protecting the Interest of Clients and Promoting the Rule of Law) Act 2010.

The Bar Council of the North East states today expressed its concern and in a press conference stated that the Bill introduced by the central government clearly demonstrates the autocratic tendency of the Government of India and is an attempt to destroy the autonomy of the Indian Bar by creating divisions amongst the legal practitioners. The Council maintains that the Bill further seeks to make the central government the overall authority to control and regulate the affairs of the Bar Councils both at the central and the state level which directly amounts to interference with the Bar Councils.

According to the Council, the Bill is in direct conflict with the Advocates Act 1961 and is an anti-advocates Bill. The Council expressed its concern that this amounts to curtailing the autonomy of Bar Councils constituted under Advocates Act and also amounts to converting the legal profession into a trade and business by allowing entry of unqualified persons to practice law. This will eventually adversely affect the public in general. The Council also expressed that the Act would make the government a super imposing authority and to ensure that the advocates also follow the philosophy of the government. The Council further highlighted that this was a ploy for allowing foreign lawyers to practice in India.

The Bar Council of the Northeastern States called upon all the Bar Associations of the region from sub-division level to state level to send representation to the Union Law Minister demanding that the Bill be scrapped. The Council resolved to observe Protest Day on 24 March, 2011 by way of sit-in demonstration and wearing protest badges, which is in tune with the resolution adopted by the joint meeting the Bar Council of India and state Bar Councils held in Jaipur on March 12 last.

The sit-in demonstration shall be held in the Bar Association premises in each and every district and sub-divisions in the N-E states including Sikkim by the advocates.

Similarly the Bar Council of Himachal Pradesh will also be observing March 24 as national Protest Day, as stated by YS Chandel, acting Secretary, of the Bar Council of Himachal Pradesh. The advocates are opposing the Act and the hidden agenda of which according to them is to attack on the unity, solidarity and independence of the Bar and to undermine the legal profession in the country.

The draft bill, according to the Government aims to provide for "the establishment of the Legal Services Board and in respect of its functions; to make provision for, and in connection with, the regulation of persons who carry out the activities of legal practitioners; to make provisions for the establishment of an ombudsman for complaints against the professionals and for a scheme to consider and determine complaints against the legal practitioners; to make provision in respect of providing legal services free of charge and for connected purposes".

The draft law defines the term 'legal practitioners' in a wide and comprehensive manner to include not only those appearing before courts but also includes the qualified lawyers engaged in legal practice confined to their chamber, engaged in drafting and conveyancing, practitioner of income tax and sale tax and those appearing before the relevant authorities, giving advise to the clients for a fee, gain or reward in the areas of customs, immigrations, trademark and patent services and all other professional services where legal issues are involved.
 
Further, the draft law also provides for the professional principles which it obliges the legal professional to follow, which are mainly, to act with independence and integrity, maintain proper standards of work, act in the best interest of their clients, act with the interest of justice and to keep the affairs of clients as confidential.

Further, the aim behind enactment of this proposed law is also provided for in the draft bill itself wherein the reasons have been enumerated as the regulatory objectives as under;

(a) protecting and promoting the public interest; 
(b) supporting the constitutional principle of the rule of law; 
(c) improving access to justice; 
(d) protecting and promoting the interests of the clients of the legal practitioners; 
(e) promoting healthy competition amongst the legal practitioners for improving the quality of service; 
(f) encouraging an independent, strong, diverse and effective legal profession with ethical obligations and with a strong sense of duty towards the courts and tribunals where they appear; 
(g) creating legal awareness amongst the general public and to make the consumers of the legal profession well informed of their legal rights and duties; 
(h) promoting and maintaining adherence to the professional principles.

Source - http://www.lawetalnews.com/NewsDetail.asp?newsid=3624

The Karnataka State Bar Council today opposed the proposed Legal Practitioners Act 2010, terming it as "totally unnecessary" and said they would join the March 24 nationwide protest against it.
"The proposed Draft Bill is totally unnecessary as every one of the subject matters sought to be covered by the Draft Bill actually is the subject matter for which Advocates Act, 1961, has been enacted and Bar Council at the State level and Bar Council of India have been established," State Bar Council President Jayakumar S Patil told reporters here.
This, along with creation of a Legal Services Board as a super regulatory body would interfere with independence of the Bar, he said.
Under the proposed Act, legal professional is defined to include anybody dealing with legal issues though they are not enrolled as advocates, which is a "dangerous trend", he said.
The draft legislation was intended to cover persons coming from abroad practicing legal profession. Other clauses clearly indicate this is not a legislation proposed to control and regulate working of legal professionals coming from other countries, Patil said.
The Legal Services Board as contemplated is supposed to be constituted by appointment of Chairman and Members in consultation with Chief Justice of India and Chairman of Bar Council of India "which definitely gives an indication that persons to be considered for appointment are retired judges."
The Bar, Patil said, strongly feels any control of the profession should be by professionals themselves and bringing in Judicial Officers, whether serving or retired, "is totally against the concept of independence of Bar".
So if Legal Services Board is to be constituted, persons in the Board should only be from among advocates, Patil said.
He opposed the concept of appointment of Ombudsman i.e. a retired High Court Judge or retired Judicial Officers, describing it as "anathema to independence of the Bar".
Instead of creating another top heavy body, it is better that existing structure under the Advocates Act be reinforced, if necessary through appropriate amendments, to provide infrastructure as well as funds, he said.

Source - http://news.in.msn.com/national/article.aspx?cp-documentid=5036333

JAIPUR: Lawyers across the country will boycott courts on March 24 in protest against the proposed Legal Practitioners (Regulation and Maintenance of Standards in Profession, Protecting the Interest of Clients and Promoting the Rule of Law) Act 2010.

A decision in this regard was taken at the end of a day-long conference of state Bar councils organised here by the Bar Council of Rajasthan (BCR) on Saturday. Eight members of the Bar Council of India (BCI) and chairmen and members of Bar councils from nearly a dozen states took part in the conference.

During the conference, Bihar State Bar Council chairman Baleshwar Prasad Sharma and Suresh Chand Srimali, member and former chairman of the BCR, had demanded action against BCI chairman Gopal Subramaniam for allegedly supporting the government on the proposed Act, which the lawyers believe would curtail powers of the Bar Councils and "commercialise" their profession. Subramaniam was not present at the conference.

The lawyers alleged that the proposed Act would enable formation of a legal service board comprising a chairman, a member secretary and five members who would usurp the powers of the BCI and other state Bar councils.

The participants were concerned that the board would appoint ombudsmen for each state to deal with the complaints against the law professionals and, thereby, interfere with the freedom of lawyers.

"The conference unanimously decided to oppose the proposed Act as it derogates and condemns the provisions of the Advocates Act 1961," said Sanjay Sharma, a BCR member and co-convener of the conference.

"The proposed Act will work as a body giving entry tickets to foreign law firms/consultancy firms and legal practitioners, thus commercializing the noble profession of litigation," said Ram Manohar Sharma, president of the Bar Association of Jaipur.

The participant Bar Councils resolved to form an All India Advocates Action Committee to decide on the further course of action on the issue.

"BCR chairman N S Chaudhary has been nominated chairman of the committee and BCI member M Rajendra Reddy as its co-convener. All BCI members and chairmen of the state Bar councils shall be the committee members," Sanjay Sharma said.

The committee would submit a representation opposing the proposed Act to the Prime Minister and the Law minister.

The state Bar councils also resolved to demand a transfer policy for judges to bring transparency in the judiciary. They also demanded that the state governments should pay a "matching grant" to the respective Bar councils for the welfare of lawyers.

Source - http://articles.timesofindia.indiatimes.com/2011-03-13/jaipur/28685769_1_bar-councils-bci-boycott-courts

Indian Government Plans To Regulate Online Content & Blogs - Medianama.com

As a part of the rules being finalized to supplement India’s Information Technology Amendment Act 2008, rules are being included that will indirectly allow the Indian government to control content being published on the Internet. This is hardly surprising: last week, at the CII Content Summit, three government functionaries – Information & Broadcasting (I&B) Minister Ambika Soni, TRAI Chief JS Sarma and I&B Secretary Raghu Menon, had all mentioned concerns about content on the Internet, even as they tried to downplay content regulation:

- Sarma said that “How do you control the Internet? That is baffling and challenging, and it is fraught with issues of freedom and security. Security in terms of physical security and others. This will have to be studied over the course of next few months or the next year or so.”

- Menon pointed towards the UK and issues of pornography, saying that the IPTV Association in the UK is in contact with the ISPs to ensure that the ISPs provide regulated content. People who are concerned about this, they’re approaching the ISPs for what is appropriate or not. This is a subject which is outside the purview of the ministry I work in.”

Menon works in the I&B Ministry, and this modus operandi of dealing with ISPs would be the mandate of the Ministry of Information Technology, which is putting into place these rules for regulating content through ISPs. A few things to note from the rules (download) that have been drafted:

1. Definition of Blogs, Bloggers & Users: This is tricky: blogs do two things – they publish content, and have user generated content in the form of comments. at one level, they are a publisher, and at another, an intermediary. The guidelines however, clearly define a blogger only as a user, and that a blog is  ”a type of website, usually maintained by an individual with regular entries of commentary, descriptions of events, or other material such as graphics or video.” This is generic, and could mean any online publication, including ours, and online publishers would also come under the ambit of the definition of the term ‘users’. What is odd, is that the rules specifically define blogs and bloggers, when there is no apparent reason for doing so.

2. What can they block you for? There’s a problem with how wide the offenses under which you can be blocked, are defined. ISP’s and other intermediaries have to notify users (including online publishers and bloggers) not to use, display, upload, modify, publish, transmit, update, share or store any information that:

- (a) belongs to another person; (d) infringes any patent, trademark, copyright or other proprietary rights;
Our Take: this should be covered under the Copyright Act, not IT Act.

- (b) is harmful, threatening, abusive, harassing, blasphemous, objectionable, defamatory, vulgar, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever; (g) causes annoyance or inconvenience or deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;
Our Take: There goes most of the Internet. Using phrases like ‘objectionable’, ‘disparaging’, annoyance and inconvenience, which are highly subjective, the government has given itself the power to block anything they want. Remember that if someone publishes a libelous comment, or a hateful comment, for which an online publisher should be an intermediary, the Government has the power to block the publisher. This post might annoy the government, so there goes MediaNama.

- (j) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation.
Our Take: Clearly, a move that seeks to ensure that gives the Indian government has the same powers as a Hosni Mubarak had in Egypt, and was in a position to block access to any site that might be used to organize demonstrations. Again, remember that telecom operators are also intermediaries, so it impacts all mobile connections.

- (f) discloses sensitive personal information of other person or to which the user does not have any right to”
Our take: what happens to social networking sites, which are full of such information (particularly photographs published without explicit consent)? What of whistleblowing blogs or sites – does this give the Indian government, for example, the right to block Wikileaks in India, if they find that details of Swiss Bank account holders has been disclosed?

How they’ll block sites

The government has taken adequate measures to ensure that the process by which a request for blocking of sites goes through several check-points (page 29 onwards of these rules; pdf): Any complaint that has been sent to a Nodal officer can only be forwarded to a Designated Officer after it has the approval of the Chief Secretary of the concerned State or Union territory. Then the request is looked into by a Committee, which has a Designated Officer as its chairperson, and representatives not below the rank of Joint Secretary in the Ministries of Law and Justice, Home Affairs, Information and Broadcasting and the Indian Computer Emergency Response Team. An order can be issued by the Secretary (Department of IT) to intermediaries (ISP), via the designated officer, to block access to the sites.

However, in case of an emergency (page 31 of these rules; pdf), the Designated Officer can expedite the blocking of any site by submitting a specific recommendation to the Secretary, Department of Information Technology, though this will have to be examined by a committee within 48 hours. The other instance is in case a court issues orders blocking of certain information on the web.

So, what does this mean?

It means that given that the Indian government is unable to control content on the Internet, it is giving itself enough powers to control access of its citizens to that content, by controlling the ISPs. The process by which it can block sites is fairly bureaucratic, and it will be difficult for a request from a normal citizen to be entertained. But what is alarming is that the government itself has enough opportunity, given how vague the reasons for blocking are, to block anything it wants to block. While you can hope for some maturity, we’d like to remind you what can go wrong if any entity in that chain of command is incompetent, or has malicious intent: in 2006, following orders to block certain sites, access to all blogs was blocked.

I’ll repeat what I said then – how can a few people decide what we get to view online?

Downloads:
- IT Act 2000- IT(Amendment) Act, 2008- IT Act Rules
- The Draft rule under section 79-Due diligence observed by intermediaries guidelines

Also read: How India’s Draft Cybercafe Rules Could Strangle Public Internet Access

By Nikhil Pahwa at http://www.medianama.com/2011/02/223-indias-draft-blogger-guidelines/

New Indian Rules May Make Online Censorship Easier

By John Ribeiro, IDG News

Draft rules proposed by the Indian government for intermediaries such as telecommunications companies, Internet service providers and blogging sites could in effect aid censorship, according to experts. Under the draft rules, intermediaries will have to notify users of their services not to use, display, upload, publish, share or store a variety of content, for which the definition is very vague, and liable to misuse. Content that is prohibited under these guidelines ranges from information that may "harm minors in any way" to content that is "harmful, threatening, abusive." Some of the terms are so vague that to stay on the right side of the law, intermediaries may in effect remove third-party content that is even mildly controversial, said Pavan Duggal, a cyberlaw consultant and advocate in India's Supreme Court.  While the definition of some of the terms like obscenity have been ruled on by India's Supreme Court, some of the other terms do not have a precise legal definition, said Pranesh Prakash, program manager at the Centre for Internet and Society, a research and advocacy group focused on consumer and citizen rights on the Internet. "Would creating a Facebook profile for a minor, for example be considered as harming a minor ?" Duggal said.  The draft rules are secondary legislation framed by the government under the country's Information Technology (Amendment) Act of 2008. Under the IT Act, an intermediary is not liable for any third-party information, data, or communication link made available or hosted by him, if among other things, he has observed due diligence under the draft rules. The new rules will give rise to subjective interpretations, thus giving a lot of discretion to non-judicial authorities in the country to decide whether the intermediary has observed due diligence or not, Duggal said. 

According to the draft rules, an intermediary has to inform users that in case of non-compliance of its terms of use of the services and privacy policy, it has the right to immediately terminate the access rights of the users to its site. After finding out about infringing content, either on its own or through the authorities, the intermediary has to work with the user or owner of the information to remove access to the information.  

Rather than recognizing the diversity of the businesses of intermediaries, the draft rules use a "one-size, fits all" set of rules across a variety of intermediaries including telecom service providers, online payment sites, e-mail service providers, and Web hosting companies, Duggal said.  

An intermediary such as a site with user-generated content, like Wikipedia, would need different terms of use from an intermediary such as an e-mail provider, because the kind of liability they accrue are different, Prakash wrote in his blog.  

he draft rules also add new provisions that appear designed to give the government easier access to content from intermediaries. Intermediaries will be required to provide information to authorized government agencies for investigative, protective, cybersecurity or intelligence activity, according to the rules. 

Information will have to be provided for the purpose of verification of identity, or for prevention, detection, prosecution and punishment of offenses, on a written request stating clearly the purpose of seeking such information, the rules add.  

The IT Act already has specific procedures in this connection for very specific information requirements, but the draft rules have broadened this to a general requirement for intermediaries to provide information, Prakash said. The new rule could in fact be a way of circumventing the earlier laws, he added. 

The draft rules assume significance in the context of recent moves by the Indian government to get Research In Motion to provide access to information on BlackBerry services in India. While providing lawful access to its consumer services like BlackBerry Messenger, RIM has declined to provide access to its corporate service, BlackBerry Enterprise Server, claiming that it does not have access to customers' encryption keys. 

The Indian government has previously also said it would demand lawful access from Google's Gmail and Skype, but has not taken any action so far in this direction. 

The draft rules will require compliance from a number of entities who until now had thought they were outside the ambit of compliance, Duggal said.

Google did not immediately respond to e-mailed requests for its comments on the new rules. Microsoft said that the government should set the policy objectives and provide directional framework, and still allow flexibility to intermediaries to set the data protection measures as they deem fit for different situations and services. 

"We believe that the intermediary should be obliged to take down non-compliant content on being notified of the same as well as terminate access rights for those who use these platforms for dissemination of non-compliant content," Microsoft said in an e-mailed statement. Non-compliance include, but is not limited to, copyrights, it added.

John Ribeiro covers outsourcing and general technology breaking news from India for The IDG News Service. Follow John on Twitter at @Johnribeiro. John's e-mail address isjohn_ribeiro@idg.com

The Legal Practitioners Act: Impact - http://barandbench.com

Source - Bar and Bench . Com

The Legal Practitioners (Regulations and Maintenance of Standards in Professions, Protecting the Interest of Clients and Promoting the Rule of Law) Act, 2010 (LPA) since its proposition by the Ministry of Law and Justicein November 2010, has been at the receiving end of flak. The LPA proposes to establish a Legal Services Board on the lines of the Legal Services Board (LSB) in the UK, suiting the Indian situation.

The LPA has been opposed by advocates in Tamil Nadu with lawyers in Madras boycotting court proceedings on December 10, 2010 claiming that the LPA would “usurp the powers of the All India Bar Council”, reports the Hindu. The strike was followed later by theSalem Bar on December 23, 2010 in protest against the LPA.

Managing Partner Rajiv Luthra of Luthra and Luthra and Senior Vice-President of the Society of Indian Law Firms, in an exclusive interview with Bar & Bench has also opposed the LPA and said, “SILF is opposing this proposal because it does not see the need for a super-regulator above the Bar Council of India, which already regulates all the State Bar Councils. Everyone’s efforts would be better spent in finding solutions for the problems currently faced by the Bar Councils and strengthen systems and procedures, rather than adding a new layer of unelected bureaucracy in the hope that this will somehow fix issues”.

The Bar Council of India according to its Chairman Gopal Subramanium at the recently held Commonwealth Law Conference stated, that the Bar Council is proposing a new set of ethical norms for lawyers by the year end. The new guidelines were simple and drawn mostly from South African principles and the Bar Council has decided to update and make the guidelines more realistic as they were not revisited since they were framed in 1962-63, reports the Hindu.

Bar & Bench spoke with Harish Narasappa (pictured) Co-Founder Partner of Narasappa, Doraswamy & Raja, a leading law firm in Bangaluru on the impact of the proposed Legal Services Board under the Legal Practitioners Act.

B&B: The Legal Practitioners Act (LPA) proposes to set up a Legal Services Board (LSB). What do you think will be the impact of the LSB being set-up, in a country like India?

Harish Narasappa: The impact will depend on the people appointed to the LSB. If the right people are appointed to the Board, the LSB can provide a much needed and frankly overdue leadership to the profession in the country in terms of continuing education, active propagation and enforcement of ethical standards, improving processes of law making and adjudication processes.

B&B: Your thoughts on boycotting of the Legal Practitioners Act by States (like Andhra Pradesh and Tamil Nadu) for reasons of fear that the LSB will interfere with the freedom of lawyers.

Harish Narasappa: Meaningful regulation of the profession is necessary, but such regulation should not interfere with the functioning of lawyers who have an important role in ensuring the rule of law. The boycott is premature and not correct. As lawyers we should use the law and its processes even in opposing legislation. There is no doubt that the LPA (as it is currently proposed) is not good enough and appears to be a hastily put together draft (it even has typographical errors!!). We should engage with the ministry to make the LPA better.

B&B: The LSB appoints an Ombudsman, who will have the power to conduct an inquiry on a complaint filed by a consumer/client of a legal professional (A frivolous complaint could cause damage and loss of image to a professional in the process of an inquiry).

Harish Narasappa: The dilemma you mention is common in every profession, but that should not be the reason for not having a meaningful redressal mechanism. Unfortunately, there are bad eggs in the profession, and we need to make sure they are brought to the book under law. As lawyers, we should be the profession that takes the lead to protect the sanctity of the law.

B&B: The LSB mandates a legal professional to impart free legal aid to the financially weaker sections. Do you think mandating legal aid acts as a solution?

Harish Narasappa: No, I do not think this is a solution. It is almost impossible to enforce such a provision. Instead, the LPA should encourage more number of lawyers to assist the financially weaker sections by giving credit to such work. For example, a number of law firms in London encourage their lawyers to do legal aid and such work is an important consideration for continued growth in the firm. Something similar needs to happen here on an institutional level.

B&B: What do you propose should be the aim of the LSB?

Harish Narasappa: In my view, the LPA and the LSB should aim to restore the integrity and dignity of the profession, which has been bruised badly over the past few decades. This can only be done by improving standards of the profession, both at entry level and on a continuous basis through continuing education and training. This has unfortunately never been done properly by the Bar Councils, although they have taken a first step in the form of the Bar exam recently. Further, the LPA should also meaningfully regulate improper behavior by members of the profession, either through the Bar Councils or otherwise. For example, how many lawyers who are photographed vandalizing public property during protests have been actually punished over the last few decades?