LEXPEEPS editor – Page 451

About

The RMLNLU Law Review Blog is an online publication of Dr. Ram Manohar Lohiya National Law University, Lucknow. The Blog purports to facilitate publication of diverse perspectives on a range of issues concerning topics of contemporary legal significance and interest in the form of short, well-informed opinions. The Blog was launched in July 2015 and is edited and managed entirely by a small team of student editors at the University.

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We invite submissions on a rolling basis throughout the calendar year from members of the bar, legal professionals, law students, or others who are interested in publishing with us and wish to further legal discourse.

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Ideal Institute of Management and Technology & School of Law is organising Rakesh Aggarwal Memorial National Debate Competition 2020 on “Parity in Legal Age: A Paradigm Shift” on 22nd September 2020.

ABOUT COMPETITION

The Rakesh Aggarwal Memorial National Debate Competition is organized annually by IIMT & School of Law on contemporary issues of legal significance. Through the competition, participants will gain first-hand invaluable exper

ABOUT INSTITUTION

Ideal Institute of Management and Technology was established in the year 1999 under the auspices of New Millennium Education Society. The institute is affiliated to Guru Gobind Singh Indraprastha University, Delhi, and its professional courses in law and busoness administration are recognised by bar council of india and government of nct delhi.Being a NAAC accredited institution,it melds state of the art infrastructure with quality in education as its paramount principle.

Theme of Competition

Parity in Legal Age: A Paradigm Shift

Awards

Winning Team Rs 3000

Runners up team 2000

Best Speaker Rs 3000

Runner Up Speaker Rs 2000

Second Runner Up Speaker Rs 1000

E-Certificate for participation will be given to all the participants

Date & Time

22nd September, 10:00 AM onwards.

Platform

CISCO WebEx.

Important Dates

Last Date of Registration: 17th September 2020

Date of Competition: 22nd September 2020

Registration Fee

1000 INR (per team)

Registration Procedure

Registration can be done through Paytm or via Official Online Portal

https://docs.google.com/forms/d/e/1FAIpQLScRnAjVmOLbMGgfjGpeyq9NGWcmsr3yzGvjOwQbAag3zbogjA/viewform?usp=sf_link

Payment

Official Portal: Click here to Pay

Paytm Portal: Click here to Pay

Rules of Debate

· A team of two candidates from each University/Institute shall be eligible to participate (one for the motion and one against the motion.)

· Each speaker will get five minutes (4+1) in total for debate and there will be one interjection. Exceeding the time limit shall be a disadvantage for the team and the candidate.

· The teams are free to use either medium Hindi or English exclusivel

· Each team must register with the Organizing Committee of National Debate Competition by filling the Registration Form along with the required payment through Paytm/NEFT (details are given in Registration form) of Rs.1000/- by17th September 2020.

· The confirmation will be given to the team within two days of receiving Registration Form along with the Registration fees.

· The judgment of the jury shall be final and binding.

Contact

Hemlata Sharma: +91-98118 44877

Kanika Arora: +91-98113 80350

The application of science to those criminal and civil legislations that are enforced by the police agencies in a criminal justice procedure is known as SCIENTIFIC EVIDENCE.

The expression ‘evidence’ has been defined in Section 3 of the Indian Evidence Act. The word ‘evidence’ signifies that state of being evident. All instruments by which relevant facts are brought before the court are included in the term ‘evidence’.

Section 3 of the Indian Evidence Act, 1872 defines evidence as

“Evidence” means and includes

(1) All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral

evidence;

(2) All documents including electronic records produced for the inspection of the Court, such statements are called documentary evidence.

SCIENTIFIC EVIDENCE,In general, is established on the understanding that has been formulated by wielding the scientific method. This means that the basis for the evidence has been deduced and tested and is normally accepted within the scientific community. The concept on which the scientific evidence is based has been published in scientific journals and has been subjected to a peer review within the scientific community. Several categories of forensic evidence are often regarded as scientific evidence, like DNA matching, fingerprint identification, and hair/fiber evidence. The strategies used to formulate these types of evidence are generally beyond the spectrum of understanding that judges and juries possess and are therefore generally enlisted as scientific evidence.

The Application of science in law is typically recognized as Forensic Science. The region of its application is considerably broad and detailed. Forensic science is that portion without which the riddle of a criminal investigation is left sketchy. Devoid of forensic science, criminals can never be doomed unless an eyewitness exists. While investigators and law enforcement agents are implicated in the compilation of indications, be it manual or digital, it is forensic science that deals with the estimation of those evidence in order to ascertain facts legitimate in the court of law. This, in a world without the discovery of forensic science, murderers, thieves, drug traffickers, and rapists would be prowling scot-free. The obligations and accountabilities of a forensic scientist in a criminal investigation is significant as it involves the thorough analysis of evidence while ensuring that it is not meddled with. A distinct pool of forensic scientists and forensic means go into the examination of a criminal act.

If scientific strategies are taken into deliberation these are not at all illegal or unlawful. Once recovery is made with the help of scientific tools and techniques, the prosecution can easily demonstrate the close association between the finding of a material object in the commission of an offense. Thus, the use of Narco-analysis polygraph and brain-mapping would extensively encourage examination councils that too in a scientific manner without compelling authorities to take refuge in inhumane treatment.

Narco Analysis

The term Narco analysis is derived from the Greek word “Nark” meaning anesthesia. In the test, the subject is injected with a drug, and his imagination is neutralized while he is semi-conscious. It is difficult for him to lie and these answers are restricted to facts he is already aware of. The Narco analysis test in India is done by a team comprising an anesthesiologist, a psychiatrist, a clinical/ forensic psychologist, an audio-videographer, and aiding nursing staff. The forensic psychologist formulated the report about the disclosures, which will be accompanied by a compact disc of audio-video recordings. In order to verify the strength of the revelations made it is further verified by subjecting the person to polygraph and brain mapping tests.

In India, narco-analysis was first used in 2002 in the Godhra carnage case. It was again in the news in the Telgi stamp paper scam when Abdul Karim Telgi was taken to the test in December 2003. Though in the case of Telgi, an immense amount of information was yielded, doubts were raised about its value as evidence. The Bombay High Court, in a significant verdict in the case of Ramchandra Reddy and Others v State of Maharashtra, upheld the legality of the use of P300 or Brain Mapping and narco analysis test. The court also said that evidence procured under the effect of the narco analysis test is also admissible. However, defense lawyers and human rights activists viewed that the narco analysis test was a very primitive form of investigation and third-degree treatment, and there were legal lapses interrogation with the aid of drugs. Narco analysis is in the limelight in the context of the infamous Nithari village (Noida) serial killings. The two main accused in the Nithari serial killings Mohinder Singh Pandher and Surendra Kohli have undergone narco-analysis tests in Gandhinagar in Gujarat.

There is no law which deals with the admissibility of scientific evidence including the Narco analysis test Still the law is not clear about the admissibility of the Narco analysis. But in some cases, courts allow the above sad test when there are no shreds of evidence except the circumstantial evidence. Thus in rare cases courts allow the test to fill the vacuum in the evidence.

Narcoanalysis test on Abdul Rehman for the identification of terrorist activities – A Gulbarga resident Shami Ahamad Saha alias Abdul Rehman (31) was arrested on 31-3-2006 and was subjected to polygraph, narcoanalysis, and brain mapping tests at Forensic Science Laboratory at Bangalore. He is alleged to be a member of Laskhar-e-Toiyaba.

Polygraphy

A process in which selected physiological activities are recorded is known as polygraphy. According to the definition of Webster’s legal dictionary, “a polygraph is a device for measuring certain involuntary bodily responses, such as blood pressure and perspiration, from which an opinion is drawn as to whether or not the person being tested is telling the truth. Also called, to some extent positively, a Lie Detector. The problem with it is that it may yield accurate opinions in many cases, it may make nervous or confused truth-tellers, and there is no way to know exactly which results are accurate and which are not.

Nowadays, the control question (CQ) technique is the most commonly used for the Polygraph test. Control question tests are the second group of detection of deception tests. Control question tests are the most commonly used polygraph test in law enforcement today. The High Court of Gujrat in the case of Abbasbaig Habibbaig Mirza v. State of Gujarat [(2005) 3 GLR 2418] held that “The legality, validity or evidentiary value of the Lie Detector test is again a question which has to be determined at the trial”.

Polygraph test conducted on Mumbai serial killer – One Ravindra Kantrolle, a suspect of serial killing of seven people in South Mumbai in Marine Drive and Azad Maidan Police Station was subjected to scientific tests like polygraph, narcoanalysis and higher version of brain mapping tests [i.e., Brain Electrical Oscillation Signature (BEOS)]. During these tests, he confessed his involvement in the crimes.

Brain Mapping

Brain Mapping is one more valuable scientific tool for the investigation of crimes.

Brain Mapping is also known as Late Positive Complex or P3 or P300. It is a component of averaged brain potentials. In this test, no questions are asked by the accused. He is made to sit in an evoked potential recording machine and is shown objects relating to the crime scene or is made to hear sounds pertaining to the crime site. The sensors from his head pick the event-related potentials in the form of Brain Mapping only if the person has been at the site of crime. The accuracy of Brain Mapping is almost 100%. When the brain recognizes a person or a sound, it produces a precise electric wave which is called P30028. In this test, sensors are attached to the head of the subject and the subject is seated before a computerized monitor. The sensors catch the electrical activity in the brain and record the P300 wave, which is produced only if the subject has some correlation with the pictures shown to him and the sounds which he is made to hear.

Brain fingerprinting is a boon for investigating agencies. In a planned commission of a crime, the physical pieces of evidence may vanish or made to vanish and sometimes it happens that no clue of the criminal acts is found. The investigating agencies have to grope in dark in order to catch a suspect. In such a case, the brain fingerprinting has prevented it from being a boon in that regard. In the commission of a crime, the brain of the preparer is always with him while planning, exciting, and committing the crime. By this technique, it is measured as to whether there is crime-related information stored in the brain of the suspect or not.

Case Laws

The scientific test about age as a result of the epiphysis of the bones is held to be most trustworthy. In Harpal Singh v. the State of H.P. (AIR 1981 SC 361), the age of a girl was in question.

Radiologist after examination of the girl found that she was about 15 years of age and

this was corroborated by an entry in the admission register in the government school

wherein the girl was a student, which was proved by the Headmaster, and by a certified copy of the relevant entry in the birth register.

In the State of Tamil Nadu v. Rajendran,[ (1999) 8 SLC 679] the wife was found dead in a hut which had caught fire. But the medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. Later, in trial court came to the conclusion that it was the husband who strangled his wife and thereafter set the hut on fire.

It is important to note that usually with death blood disappears from the heart but the heart in asphyxia, specifically the right chambers are always found full of dark venous blood.

The following cases show the important role play of scientific evidence in the field of a criminal investigation. Custodial crime is a violation of fundamental rights subjecting an accused to undergo a scientific .test is a much better option than to let him face third-degree torture. Scientific techniques help in a speedy and fair trial. The concept of the fair trial and fair investigation is not only to be considered from the point of view of liberty or right of the accused only, the victim and the society also suffers where investigation becomes a casualty

Thus, Scientific evidence in criminal proceedings has played a key role in deciphering cases and has also resulted in a quick and steady justice system.

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The article has been written by Yash Mittal, pursuing LLB-1 year from Mewar Law Institute. Picture Credits to MarTech Today

GDPR stands for General Data Protection Regulation which came into effect on 25 May 2018. It is a regulation enforced by the European parliament on European union member states for data handling. The EU General data protection regulation is the most important change in data privacy regulation in 20 years.

GDPR was adopted and approved by the European parliament in April 2016. The Data protection directive (1995) is being replaced with the General data protection regulation (2018).

GDPR was to take effect after two years period, and it doesn’t require any legislation to be passed by the government.

Timeline

1) 21 Oct 2013- European Parliament committee on civil liberties, justice and home affairs (LIBE committee) had an orientation vote.

2) 15 Dec 2015- Negotiations between European parliament, council, and commission resulted in a joint proposal.

3) 17 Dec 2015- LIBE committee votes positively on the outcomes of negotiations.

4) 8 April 2016- Adopted by the council of the European Union.

5) 14 April 2016- Adopted by the European Parliament.

6) 4 May 2016- Published in the EU official journal.

7) 20 days later entered into force.

8) 25 May 2018- date the regulation allies from.

Why is GDPR important today?

Data is the oil of the 21st century. For a lot of business and marketing purposes, data processing is a significant process. Almost each and every company is processing some sort of personal data on regular basis.

From the last 12 to 15 years, we saw a revolution on the Internet all over the world. There are so many social media platforms like WhatsApp, Instagram, Facebook, Twitter, and many more. But when you install these applications on your desktop or mobile phones they ask for your permissions like Identity, location, contacts, photos, etc. Apps want to collect your data because it is valuable for their companies and many companies collect your valuable data for their personal use. As it helps them in making their market strategies and easy for them to know your behavior and patterns towards their products.

Rights of Individuals under GDPR

1) Right, to be informed- It must be transparent, intelligible, easily accessible, written in clear and simple language, if addressed to a child.

2) Right to access- Individuals have the right to know exactly what data or information held about them and how it has been used.

3) Right to rectification- An individual will be entitled to have personal data rectified if it is inaccurate or an option to complete it if incomplete.

4) Right to erasure- It is also known as the right to be forgotten. It gives individuals to right to have their personal data deleted or removed without the need for specific reasons.

5) Right to restrict processing- It refers to individual right to block or suppress processing of their personal data.

6) Right to data portability- It allows individuals to obtain and reuse their personal data across different services for their own purpose.

7) Right to object- Individual is entitled to object their personal data being used.

8) Right of automated decision making and profiling -GDPR has put safeguards to protect individuals against the risk that potentially damaging decision is made without human intervention.

Objective of GDPR

The objective of the GDPR is to provide a set of standardized data protection laws across all the member countries. This should make it easier for EU citizens to understand how their data is being used, and also raise any complaints, even if they are not in the country where its located.

Principles of GDPR

There are 7 key principles of GDPR:-

1) Lawfulness, fairness, and transparency.

2) Purpose limitation.

3) Data minimization.

4) Accuracy.

5) Storage limitation.

6) Integrity and confidentiality (Security).

7) Accountability.

Facebook- Cambridge Analytica data scandal

Cambridge Analytica is a British firm. It was a data leak in early 2018. The firm is alleged to harvest data of millions of Facebook users without their permission or consent. It was predominantly to be used for political advertising and to influence people voting patterns. In response, Mark Zuckerberg, CEO of Facebook apologizes for their role in the data harvesting in front of Congress and Facebook also agrees to pay fine for their breach of data.

Data Processor and Data Controller

Definitions of the data controller and data processor are outlined in Article 4 of the GDPR.

A data controller is: “a natural or legal person, public authority, agency, or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data.”

Data processors process personal data on behalf of the controller.

GDPR and its Global Impacts

General data protection regulation that came into force in May in the European Union, but it affects the companies all over the world. It will not just affect the companies but also the citizens all over the world.

GDPR gives control back to the person whose data it is. Whether a person is a business user or a consumer, they have to give their consent and it is the responsibility of the company to make sure that they secure our data properly.

But how does it affect everybody if it is a European directive?

For instance if a person is in Europe and using a service outside of Europe, then that service had to give the same privileges as it is of Europe itself.

So if anyone is providing services and if European citizens visiting some other place outside of Europe, then it has to be a complaint of GDPR.

What happens if you don’t comply with GDPR

Fines can be levied as penalties for non-compliance. There are two levels of fines.

1) Up to €10 million, or 2% annual global turnover – whichever is higher.

2) Up to €20 million, or 4% annual global turnover – whichever is higher.

But not all infringements will lead to serious fines. There are some corrective powers to enforce GDPR.

1) Issuing warnings and reprimands;

2) Imposing a temporary or permanent ban on data processing;

3) Ordering the rectification, restriction or erasure of data, and;

4) Suspending data transfers to third countries.

Conclusion

The general data protection regulation of the European Union is to secure the personal data of its citizens and secure them from cyber threats. In India, in recent times “The Ministry of Electronics and Information Technology has received many complaints, about the misuse of some mobile apps on mobile phones for stealing and misusing the users data in an unauthorized manner to servers which have locations outside of India.

India banned Chinese apps like pubg, tiktok etc.

It is important for the government to secure it’s citizens’ rights that are right to privacy under article 21.

The government had to make sanctions for protecting its citizens from cyber threats and to secure their personal data.

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About the Organization

Team Attorneylex is a newly developed organisation that is devoted to the law students ofthe country. Our primary purpose is to guide the law students in their legal research, contentwriting, analyse the case, read or understand the judgments passed by the courts, etc. because we believe that these things are an essential part of the legal profession.

About the Competition

Team Attorneylex is organising its 2nd National Article writing competition for all the thosewho want to show their research and writing skills and are not able to find the perfect stage; here, we are giving them a chance to show their talent.

TOPIC: Any Contemporary Legal Issue.

Eligibility

Any enrolled student of school/ university/ college, graduate/postgraduates, academicians, advocates, and anyone who can express through the words.

Language: English or Hindi.

The Submission Guidelines Are-

● Word Limit – 1200 – 1500 (inclusive of footnotes)

● Co-authorship is allowed (maximum one co-author)

● All submission must be sent at submission@teamattorneylex.in

● The subject of the email should be “Submission: Article Writing Competition.”

● Write-up must be original and unpublished.

● Submissions with plagiarised content and copyright issues will be rejected outrightly.

● The decision of the judges shall be final and binding.

● Font Size -12

● Font Style – Times New Roman

● Citation – 19th Bluebook

The submission shall also be accompanied by another Word document consisting of a CoverLetter mentioning the Name of the Author/s; Name of the Institution/College/University; Designation; Year of Study (if applicable); Email ID.

Registration Fees

Single Author – 100/-

Co – Authorship – 150/-

Important Dates

Last date of payment and registration: October 20, 2020

Last date of submission: 11:59 PM, October 23, 2020

Declaration of Results: 28 October 2020

Prizes

● Winner: cash prize Rs. 2000/- + certificate of Excellence + Article publication on thewebsite + Online Internship opportunity with the Team Attorneylex. ● Runner up: cash prize Rs. 1000/- + certificate of Excellence + Article publication onthe website + Online Internship Opportunity with Team Attorneylex. ● Certificate of Merit to top 20 performers. ● E – participation Certificate will be provided to all the participants.

Payments details

Paytm/ G-pay/Phonepe- 9616696008 (Gaurav yadav)

Bhim UPI- 9616696008@upi

Bank detailsName- Gaurav Yadav

Bank – Oriental Bank of Commerce

Account Number- 03842193000248

IFSC Code- ORBC0100394

Registration Link

https://forms.gle/9Rhs5SFWwsVxv1y99

Website Link

https://teamattorneylex.in/

If you have any queries feel free to contact

Vanshika – 07055460463

Gaurav -09616696008

Email- contact@teamattorneylex.in

TWO-DAY WORKSHOP ON PATENT FACILITATION

DATE: 26th & 27th SEPTEMBER, 2020

Centre for Intellectual Property Studies at NLU, Jodhpur is organising a Two-Day Workshop on “Patent Facilitation” covering the aspects of Patent Basics, Filing of Specification and Claim Drafting.

ABOUT THE ORGANISERS: NLUJ-CIPS

The Centre for IP Studies (“CIPS”) at National Law University Jodhpur isfocussed on creating a niche space for research in intellectual property. CIPSengages with the community and creates avenues for spreading awareness inIntellectual Property . Its combination of motivated faculty and students aims tomake the domain of intellectual property accessible to all through its initiatives. As a part of its dedicated Centre activities intended to promote research andstudies in the field of Intellectual Property Rights, the Centre has taken theinitiative to organise the workshop. The Centre monitors, designs anddisseminates various courses and programmes pertaining to training and researchin Intellectual Property Rights.

ABOUT THE WORKSHOP

The workshop is aimed towards engaging students, academicians, industryprofessionals and practitioners in a discussion on the patents drafting, filing andprotection regime. The purpose of conducting the workshop is primarily tointroduce participants to the basics of patent drafting and the filing procedure. This would help the participants in understanding the relevance of specificationdrafting and claim construction as well. The workshop would be a Two-Day event spread across four technical sessionsby our eminent Speakers specialised in Intellectual Property Laws and havingimmense experience in the field of Intellectual Property. The participants would be able to learn the basics of patentability, filing anddrafting along with some related aspects that would be covered by the experts.

THEME

The underlying theme on the basis of which the sessions of the workshop havebeen designed is “Basics of Patent Filing and Drafting of Claims &Specifications”. The sessions shall specifically be focussed on aspects ofpatentable inventions, filing procedure and requirements, along with specialemphasis on Specifications and Patent Claims.

ELIGIBILITY FOR PARTICIPATION

The participation is open to a maximum of 100 Participants on first come first serve basis. (The100 available slots are for participants other than the NLUJ IPR Hons. Students.) Students pursuing three or five year integrated law course or intellectual property or any otherscience /technology based courses and interested in learning and exploring the patent filingprocedure may apply. The workshop is also open to academicians, industry professionals andearly practitioners. All participants will be awarded Workshop Completion-cum-Participation E-Certificate onattending all four sessions of the workshop. NLUJ students who have opted for IPR Hons. and are interested in attending the workshopshall not be required to pay the registration fee.

REGISTRATION DETAILS

The expression of interest can be done through the Google forms link:

https://docs.google.com/forms/d/e/1FAIpQLSfRJwf8xZGSkoAC1Mw9fHMT8_t5DncDx9b0lnJvCb2fXRrkg/viewform?usp=sf_link by 20th September, 2020 by 11:59pm.

First 100 applicants will receive an email by 21st September, 2020 for making the requisite payment for completion of registration process.

Each applicant shall be required to pay a registration amount of: Rs.750 for students and researchers, and Rs. 1000 for academicians, industry professionals and practitioners after they are notified about the selection for the workshop. The registration amount must be paid by 25th September, 2020 by 11:59pm.

Each entry shall pay the registration fee through the following link: http://www.nlujodhpur.ac.in/fee.php by choosing “Payment Other than semester Fee” Option and specifying the purpose of payment as “PFP Workshop”.

IMPORTANT DATES

Last Date for Expression of Interest: 20th September, 2020 by 11:59 PM.

Notification of Selection: 21st September, 2020 by 11:59PM. Registration and Payment of Registration Fee: 25th September, 2020 by 11:59 PM.

Email with Payment Receipt for Confirmation: 25th September, 2020 by 11:59 PM.

Workshop Dates: 26th & 27th September, 2020.

CONTACT PERSONS

All queries may be directed to cips@nlujodhpur.ac.in or any of the following members of the

ORGANISING TEAM

Aditya J. Nair, Student Advisor, CIPS – Ph: 9497969600

Rohan C. Govind Nallagatla, Student Member, CIPS – Ph: 8696922103

For further information on the event and registration details, Click Here.

It is with great pleasure, the JLU-Centre for International Commercial Arbitration and Alternate Dispute Resolution announces the first of its kind Workshop on Mediation titled “LANDSCAPE OF MEDIATION: PATHWAYS AND PATTERN” to be organised in association of two prolific organisations Asia Pacific Centre for Arbitration and Mediation (APCAM) and Indian Institute of Arbitration & Mediation (IIAM).

The Workshop is open to the U.G/P.G Students, Faculty Members, Research Scholars and Professionals from the field of Law.

Participants are requested to register by filling the google form before the deadline and attach the receipt of payment of registration fee in the registration form.

The Registration Fee (non-refundable) is as follows:

For JLU Students- Rs. 350/-

For Students of Other Institutions- Rs. 500/-

Professionals- Rs.1000/-

LAST DATE OF REGISTRATION: 18 September 2020

https://libertatem.in/wp-content/uploads/2020/09/NJYMCC2020.pdf

Case Number

250

Bench

B. Sudarshan Reddy, Surinder Singh Nijjar

Decided On

5 July, 2011

Equivalent Citation

250 OF 2007

Relevant Acts

Section 17 and section 9(1) of Indian Police Act, 1861

Facts

This particular case was brought up in front of the Supreme Court of India by Nandini Sundar who works as a sociology professor at Delhi School of Economics along with Ramchandra Guha, an historian and also an E.A.S. Sarma former secretary to the GOI. The petitioners had challenged the State of Chhattisgarh on the appointment of tribal people as SPOs or Special Police Officers. The main contention in this case was that the appointment of such tribal people was a complete violation to the Human Rights of the citizens of Chhattisgarh. The main story which comes over here is that the Chhattisgarh state had created a group in the year 2005 known as Salwa Judum in order to fight against the Maoists who were causing really much trouble at the entire state by killing people mercilessly. The State had appointed SOPs for creating an environment of peace and the main reason why state had elected tribal people as SOPs was that the tribal people had the knowledge of local language and therefore, they can handle the entire situation of these Maoists/Naxalists on their own ways. In the year 2006, Nandini along with some other people had conducted a detailed fact research on this group and she got several complaints against this group. Therefore, she went to various commissions in order to file a report like National Human Rights Commissions, The Prime Ministers office, Union Home Minster and National Commission of Tribal Rights. In the end after visiting all these places, they finally went to the Supreme Court of India in the year 2007 and filed a writ petition so as to get an investigation in this matter because it was actually quite violative of the basic human rights. The contentions that were raised by the petitioners was that that there was widespread human rights violation of the people in Dantewada District of Chhattisgarh which resulted on account of the ongoing armed Maoist/Naxalite insurgency and counter insurgency operation launched by the Chhattisgarh Government.2 It is further alleged that, Chhattisgarh government has actively promoted SalwaJudum group as an armed civilian vigilante group, which further aggravated ongoing struggle, and was leading to further widespread violation of the human rights in form of ill treatment, displacement of Dantewada District people. The demand of the petitioners was just to provide justice to the innocent people of Chhattisgarh state and also remove this SOP appointment because it was not at all providing any sort of advantage to the state. The Maoists attacks were still going on and it was still causing trouble to the people.

Issue

The main issue in this case involved was to clearly analyze the issue of appointment of tribal people as Special Police Officers or SPO by the Chhattisgarh Government and also validity of Chandigarh Police Act, 2007.

Ratio Decidendi

This Case is based on Constitutional validity of SPO appointment and Chandigarh Police Act, 2007 i.e. it is a case of National Security.

Judgment

In this particular case, the Supreme Court had made a very comprehensive and a detailed judgement. The judges in this case had struck down the unconstitutional practice of hiring tribal people as SOP. The State of Chhattisgarh had also made some amendments with respect to SOP’s immediately and refrained from using them in any sort of activities whether directly or indirectly which aims on controlling, countering or eliminating any Maoist/ Naxalite in the state. The UOI or Union of India will not use any of its fund in order to recruit SOPs for the purpose of engaging them to any sort of activities against Naxalites/ Maoists. The state would make every possible step to recall all the firearms given to the SOPs. They would also give their efforts in providing protection and safeguard to those who have served as SOPs earlier. The state has also taken the responsibility of limiting the operations of any groups that would not be limited to SalwaJudum and Koya Commandos or to take law and order in their hands so as to prevent any sort of attack that can be really harmful for the humanity and violate the Human Rights. The protocols that would be followed by the state are having a clear-cut investigation on the activities of these two army groups and also to file an FIR immediately if there is any sort of violation under any aspect outlined. In addition to all these things, the state in the end made sections 23 (1) (h) and 23 (1) (i) as unconstitutional since it is violative of the human rights. These are some of the important judgements that were made in order to safeguard the National Security and also the constitutional validity of certain outlined provisions. It took around 6 years to bring a considerable judgement towards the parties. The main aspect that was outlined over here in order to get a fair judgement was that the court had looked into section 17 of the Indian Police Act, 1861 so as to check the validity of the main issues. The court had provided fair and equitable justice to the parties and also safeguarded the security of the State of Chhattisgarh.

Overall, the judgment is a landmark one, upholding the constitutional values. But on the other side the author humbly and respectfully is of the opinion that the observation of the Apex Court does not reflect the correct legal position because just reaching the “right” conclusion is not enough. As it is mentioned earlier that, discussion on the concept of the neo-liberalism, socio economic condition etc. by the Apex Court is deviation from the main issue of the case, further court has also not invoked any international humanitarian law principles in this case which can be invoked very easily, since Indian Constitution itself enshrined various provisions of international humanitarian law principles.

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This article has written by Prithiv Raj Sahu, a student of KIIT School of Law, Bhubaneswar (4th year)

Introduction

In India, a non-profit organisation can be registered as Trust by executing a Trust deed or as a Society under the Registrar of Societies, or as a private limited non-profit company under Section 8 Company under the Companies Act, 2013. A Section 8 Company is the same as the popular Section 25 company under the old Companies Act, 1956, which was one of the most popular forms of Non- Profit Organisations in India. But, as per the new Companies Act 2013, Section 25 (as per the old act) has now become Section 8. As per Section 8(1a, 1b, 1c) of the new Companies Act, 2013, a person can establish Section 8 company for “promotion of commerce, art, science, sports, education, research, social welfare, religion, charity, protection of environment or any such other object”, provided it intends to apply its profits, if any, or other income in promoting its objects and intends to prohibit the payment of any dividend to its members.

To register a section 8 company in India, the process is similar to the incorporation of other companies (except requires an additional license). The applicant looking to start a section 8 company has to file Form INC-1 for name availability. On approval of the name, there is a further requirement of obtaining a license for a Section 8 Company, for which file the Form RD-1 in order to obtain a license for such company. After obtaining the license number, the applicant can proceed further to incorporate a company by filing e forms INC-7, INC-22 and DIR-12 or e-forms INC-7 and DIR-12.

Eligibility for forming a Section 8 Company

A person or an association of persons intending to be registered under Section 8 of the Companies Act, 2013 as a limited company has in its objects the promotion of commerce, art, science, sports, education, research, social welfare, religion, charity, protection of environment or any such other object; intends to apply its profits, if any, or other income in promoting its objects; and intends to prohibit the payment of any dividend to its members.

Exception for Section 8 Companies

Company Secretaries are not mandatory
There is no requirement for minimum share capital
Prior and short notice period of 14 days for Annual General Meetings
The recording of the MOM is not required unless needed
Number of Directors (2) is required
A director can take up more than 20 Section 8 company positions in various other companies.
There is no requirement for any committees
Meeting are called only for some specific decisions

Characteristics of Section 8 Companies

1. Incorporate for social welfare

2. No minimum capital

3. Licensed by government

4. Limited liability

5. No dividend distribution

Advantages

Members have limited liability.
No minimum capital requirements.
They get several tax exemptions.
Stamp duties and high fees are not payable for registration.
They have perpetual existence and separate legal status.
Exemptions from carrying out several procedural compliances.
More credibility than compared to NGOs, societies, and trusts because they are recognized by the Central Government’s license.

Disadvantages

Members of the company cannot get any dividend.
Officers and directors do not get benefits and allowances.
Can only use the profits for furthering charitable aims and objectives.
Amendment of memorandum and articles requires Central Government’s permission.
The license is revocable on several grounds.

Winding Up

Section 8 companies can wind-up or dissolve themselves either voluntarily or under orders given by the Central Government. If any assets remain after satisfaction of debts and liabilities upon such winding-up, the National Company Law Tribunal can order the transfer of these assets to a similar company. It can also order that they must be sold and the proceeds of this sale should be credited to the Insolvency and Bankruptcy Fund.

Punishment for Contravention

Any company that contravenes provisions of Section 8 is punishable with a fine ranging from Rs. 10 lakhs to Rs. 1 crore. Further, directors and officers of the company are liable to punishment with imprisonment up to 3 years and a fine between Rs. 25,000 to Rs. 25 lakhs. Such officers can also face prosecution under stringent provisions of Section 447 (dealing with fraud) if they conduct any affairs with fraudulent motives.

Procedure for Incorporation of Section 8 Companies

To register a company under Section 8 you need to just follow these steps:

Obtain a DSC of the proposed Directors of the Section 8 Company.
Once a DSC is received file Form DIR-3 with the ROC for getting a DIN.
Once the DIR-3 is approved
Draft MOA and AOA
File Form RUN for reservation/availability of company name.
After approval, file Form INC-12 with the ROC
Once the Form is approved by Central Government, a license under section 8 will be issued in Form INC-16.
After obtaining the license, file SPICE Form 32 with the ROC for incorporation

Relevant Case Laws

In N.C. Bakshi v. Union of India

An association had been given a licence under section 25 (now section 8) by the Central Government and as per licence condition, no alteration could be made in Articles of Association unless alteration had been approved by Central Government. Alteration made to Articles of Association of respondent had been approved but according to petitioner members their representation was not considered. Petitioner sought for quashing of approval and mandamus to grant fair hearing to petitioner.

Delhi high court held that since petitioner’s representation was not considered while granting impugned approval, competent authority was to be directed to provide a post decisional hearing to petitioners on representation and to pass a speaking order while returning a positive finding as to whether alterations in articles of association impugned were in contravention of provisions of act.

Conclusion

Section 8 companies primarily operate for charitable and non-profit objectives which are for the well-being of our society. Also it has got several exemptions in terms of tax and others. These companies are registered under ministry of corporate affairs, government of India.

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About the Organisers

Students for Liberty (SFL) is an International libertarian non-profit organisation whose mission is to “educate, develop, and empower the next generation leaders of liberty.” Formed in 2008, SFL has since grown into a full organisation with various programs and a network of affiliated student groups in North America, Europe, Latin America, Africa, South Asia and the Asia-Pacific.

Students for Liberty is the world’s largest law and academically market-oriented movement of students who have been deliberating and focusing on essential policy issues that our societies face.

About the Essay Writing Competition

South Asia Students For Liberty invites participants to an Essay Writing Competition on any one of the following topics:

How has the Pandemic Changed the ‘Practice’ and ‘Perception’ of Liberty?
Is it Ethical to Demand ‘Freedom of Movement’ During the Pandemic? Shed some light on the ‘Efficacy’ of constitutional or legislative modifications incorporated by various countries to curb movement across and within countries.
Comment on the statement: “The Pandemic Has Exposed Severe Political Institutional Crises Within Countries.”
How has the Pandemic prompted scholars to think of a new ‘Social Contract Theory?’
Has Quarantining Inspired You? Or Has It Disappointed You? Either way, SASFL provides you the space to freely express your thoughts and recognises you for each step that you take towards creating a freer society that allows you to speak your mind.

Eligibility Criteria

18-22 age group
Any school/college

How to Submit?

https://docs.google.com/forms/d/e/1FAIpQLScN47OFrESCxMghV65HxNaHj0kE3sD-r8uTLrDi-7xgNI1Q0g/viewform?usp=sf_link&urp=gmail_link&gxids=7628

Last Date of Submission: 12th September 2020
2500 words only
Submit in a Word Doc or PDF format.
Only one entry will be accepted per person. Multiple entries are forbidden.
Individual participation only. Group entries will not be accepted.

Kindly note that the structure of the essay should be as follows:

Name of the Participant
Email address
Phone Number
Age
The content should be divided into three components: Introduction, Main Body, Conclusion

Perks

eCertificates will be given to all participants.
Winners will get the chance to be featured on our social media pages.

Contact

E-mail ID: dmalik[at]studentsforliberty.org