Is Immigration dying in the Land of Free, United States of America.

By: Ankit Khetarpal

                                                                                                                                 Indian Attorney

                                                                                                                                 Thomas R. Kline School of Law

                                                                                                                                 Drexel University                       

JD 2019

Immigration, where often, the immigrants are the scapegoats of falling economy. Sometime, land borders are carefully given undue weightage, sometimes ignored to assume the demands of the economy. Here, we have US Economy, which was built on the hard-earned efforts of immigrants, which now is looked as enemy of the American public. Rather the question should be, who is American public. Does it include immigrants, or is it all immigrants, or is its unabashed white people, or do blacks voice counts, or is It American public including all people as a whole together.

Immigration, has been by lawyers, while practicing divided into three categories. They have often started practicing, and super specializing, if I may say so, in to those specific categories. They are, employment based, investment based, and currently though unfortunately most lucrative asylum-based immigration with a tinge of U visas. Though there is no such thing, as super specializing, but it is more out of practical aspect, depending upon whom often comes and knocks your doors for legal advice.

Every, set of immigration paths, has its own difficulties going down the roads of retrogression, delays, political compulsions, policy changes. We, lawyers often learn one thing, that immigration is not read by book, but by daily changes in immigration law, on USCIS website. Unfortunately, the most archaic, is the “birth” rule, which says, that that immigration to USA, is governed not by your intelligence, but by the place of birth. So, your line, your day the file will be opened, is more governed by the place of birth, more than your qualifications. Sometimes, it is possible, that the candidate, more qualified has to wait for decades, because of his place of birth. For example, an Indian applying for Green card, through Eb3 category with current priority date, i.e. 2020 may have to wait, more than 3 decades to think of getting green card. The Problem is not only for Indians, but also for Chinese, who are seeking endlessly the Elusive Green Card, through Investment program, due to enormous retrogression.

Unfortunately, who is suffering, or why so, nobody knows. Is having less immigrants coming to the country, a good idea and policy for development. Chinese and Indians having huge population, are currently the growth models, world is talking about. So is USA, going the wrong route, by restricting Immigration, and by not opening up. Often this question is posed, that Immigrants are eating the jobs of American public. If that is, so, I am sure Immigrants must be coming, earning and going back to their home country, and not eating, staying, living or spending in America. Perhaps, in that case, immigrants must not be applying for green cards, and just taking jobs and repatriating the money out of the country.

If that is not the case, then stopping immigration, is just reducing less expenditure in American Economy, which results in less growth of America, or at least if we compare with more populous economies who are currently on the growth chart of about 5% growth rate, whereas America is on the growth rate of 1%. So, does it mean, having more population, means having more consumption, which in turn results in more growth.

Immigration, is beneficial to the world, and not restriction to anybody. Open borders, welcome the world. Reduce visa and Immigrant restrictions, wait times etc. is the ideology of the day. Perhaps, if delays and policy changes weren’t enough, devising restrictions in the name of “specialty occupation” for H1B visa Holders, OPT applicants, or for that matter increasing the investment limit from $500,000 to $900,000, subject to other investment restrictions. The Coronavirus Pandemic (Covid-19) has taught us, that world is comprising of people, who need to work together to prevent such mis happenings and not divide them on the grounds of boundaries, or their birth.

I, Ankit Khetarpal, who happen to be a student of Drexel University, Thomas R. Kline School of Law, JD 2019, who as per standards in the legal world, have got a pretty high score in New York Bar Passing Exam, chose not to enter into the jungle of H1b, plainly on account of enormous delays in getting the elusive Green card. Should you choose that path, perhaps not, or perhaps may be. But the larger question is, its whose loss, the American Public who deserve to compete on the grounds of “best in the market”, and not on where, who is born. Some may advocate, that these delays are only, if you are from certain countries, but the question is, should the delay be there whatsoever, and secondly should it be on the basis of place of birth, and not on the basis of competition.

When I put my food in the land of Free, strolling across the Philadelphia Roads as First year Law Student, little did I know, that it’s a place where Iconic scenes of Rocky were performed. Our Law School, had taken us for a ride, as group of international students, when across the road I saw the statue of Rocky Balboa, and immediately I was reminded, that this country belongs to winning by competition. The walk down the Schuylkill river, made me realize that history belongs to immigrants, who fought and made it what America is today. Have we lost that sense of empathy or realization, that welcoming and competing, makes us what we are, instead of closing doors? Sometimes, I feel, Immigration and Nationality Act, 1965 what I read, is more in books, and in practice the world is entirely different.

Be competitive, Be Italian stallion, Welcome the world, Rule the world, Be the best.

Termination of an Employee during Covid-19

Employment in India is divided into two sections, the labour sector and the employment sector. This divide comes from the definition of ‘Workman’ in the Industrial Disputes Act. The result of making such a definition and its connection to the definition of ‘factory’ lead to the specific conundrum, where a majority of the labour law statutes in India don’t apply to a large section of employees in India. This paper focusses on that part of the Indian workforce in the organized sector that is dependent on employment contracts for their continued relationship with their employee. Specifically, this paper wants to discuss this relationship between employer and employee in the specific context of the current pandemic and the lockdown. It is well known that employers have been cutting down on their workforce in light of dwindling finances and prospects for recovery for the economy. The government has swooped in and has attempted to remedy the situation by instituting nodal offices to the labour departments that will receive complaints about unfair and unethical termination of employees.

In light of the pandemic, the government has further sent out advisories by both the MHA and Labour departments. These advisories target this specific group of unprotected employees. At the same time, the government itself cannot do much in terms of interim protection, it has exhorted companies to refrain from sacking employees en-masse, and further to not exacerbate the situations that might cause employees to resign. The respective states have passed their own notifications mandating that employees shall be paid their wages as usual, and employers shall be proceeded against under the Disaster Management Act, if they indulge in large scale retrenchment. This comes from the fact that the notifications of the government after the lockdown had been instituted have all been issued in the strength of the Disaster Management Act. For that reason, this paper will consider conventional cases of termination of employment of contract-based employees, and answer the thesis from that perspective.

It is important to note that even though the primary reason why employees are being removed is the Coronavirus and ensuing lockdown, companies are not utilizing any new means and justifications to lay off the employees, it is still being done through the contractual limitations and provisions already made available and notified to both parties to the employment contract.

The government has made further provisions ofthe payment of wages to workmen and their termination among other things: These measures are welcome, and necessary respite in lightof the possibility and potential of misuse of the contractual relationship that employers share with their employees. The reason why these measures have been taken is that employers have a far greater say and power in the negotiations for deciding the terms and conditions of the contract that is agreed upon between the parties at the time. This paper wants to explore the options the employer has in terms of his termination, and if at all, there are remedies that can be pursued.

The fundamental principle of contract-based employment is the understanding that it is not contractual employment as defined in the Contract Workers Act. This paper only deals with the peculiar situation of employer/employee relationships thatare pre-determined through a contractual agreement. In general, these contracts already contain the conditions of employment, and there is little left for speculation, this includes even the conditions for termination of employment. Most contracts, and interpretations of these contracts are constructed around the ‘at will’ theory of employment. This theory propagates that the employer is free to determine the role of the employee at will, and this has been used as a justification in situations where employees have been fired despite the lack of any apparent misgivings.

This ‘at will’ theory of interpretation of employment contracts is popular in India, albeit with some modifications to suit the overall policy of employment laws. In order to understand this ‘at will’ principle, let us look at the case ofDeMasse v ITT Corp.194 Ariz. 500in this case the company had additional rules of conduct guidelines in the employee handbook and when one of the employees sued the company for wrongful termination, the company referred to the employee handbook and argued that since some conditions of employer/ employee relationship cannot be pre-determined, it is necessary that the ‘at will’ principle should be extended to provisions that are determined after the conclusion of the original contract. This means that the employer hasthe absolute power to amend and modify the terms of employment (and therefore the termination) at any time during the pendency of the employment, provided that due notice has been given (this distinction was made in Gower v North Sound Bank957 P.2d 811 Wash. Ct. App.1998). In India, the treatment of employment is somewhat similar. Before moving on to understand the precedent of the contractual relationship between parties, one needs to bear in mind that during the current pandemic, the governmenthas put out particular guidelines which mandate that wrongful and excessive firing is not permissible, and in the same notification, companies were instructed on the accruing penalties in the event of either terminating employment or making detrimental changes to the designation of the employee during the incidence of the pandemic. It is important to note that there is still no protection or standardized dispute resolution for employee disputes, neither is there a standard statute that employees can make claims under. The Shops and Commercial Establishments Act is the best point of reference to protecting the rights of private employees, most states have their personal Shops, and Commercial Establishments Act, the general understanding from perusing the different state-specific acts is that there is no limitation on the grounds for termination of employment, rather merely a limitation on the procedure. In most states, more likely than not, employees cannot be terminated without a 30-day notice if they have served more than 3 months, and if they served less, they are entitled merely to a 14-day notice. These acts make reference to wrongful termination in the context that the procedures such as payment of severance bond, due notice period (in Tamil Nadu and Karnataka there is no time specified for notice of termination, what is mentioned is just a reasonable notice period). These acts leave the grounds of termination up to the specific employer and in the event that such termination is based on a fundamental breach of contract, even that notice period is subject to waiver.

In this light, this paper wants to take a look at a few cases that demonstrate the relationship between a contract-based employee and his employer. The best example is the Neha Dhar v National Airways Company(2011) 1 Cal, Lt. 284 case, this was a blatant case of arbitrary termination. The petitioner, in this case, was fired from her position as air hostess because she was ‘overweight’ this was a matter of contention as the petitioner argues on the basis of Article 14 against discrimination on the basis for her physical condition. Upon examination, the court held that the employment contract that she signed at the time of joining required a minimum and maximum weight restriction. In that case, it was decided that despite the nature of the terms of employment, due to the mutual nature of an employment contract, these conditions once accepted by showing of assent by the employee couldn’t be reneged unilaterally by the employee. 

A similar example can be seen in Ramneet Singh Chahal v Oracle Ltd.where the essential claim of the terminated employee was a request to reinstatement to its previous position upon establishing that his termination was motivated by illegal motes. The court on the strength of previous Supreme Court decision in S.K. Shetty v Bharat Nidhi Ltd. AIR 1958 SC 12stated that a claim of reinstatement was not statutorily provided for. The best remedy a private employee can hope for in action against his employer is one for payment of back-dated-wages and a declaration that the termination is illegal in nature. To put in simpler terms, as held in Binny Ltd. And Ors v. Sadashivnan and Ors.(2005) 6 SCC 257The general principles of administrative laws do not apply to private employment, in that case, the determinate fact in issue was whether the employees would be workmen and in the event, they weren’t due to a recent change in designation, whether the same principles of industrial and administrative law applied to them. The main takeaway from this case is that the determinate factor in applicability of the ‘at will’ principle depends more on the tasks fulfilled by the employee rather than the official designation.

Further, in the case of Shri Satya Narayan Garg v DCM Ltd. (2012) 127 Drj 216 It was held on the strength of mitigation of damages, and the manner in which the Supreme Court interpreted the case, employees cannot claim compensation for an indefinite period after their termination, and in situations where compensation for wrongful termination is claimed, the expectation is that an employee will seek out alternative employment in the meantime. This case is a reference for the quantum of compensation for a servant upon the termination of his services.The court held that the compensation should extend only to such limited period as the illegal termination has affected the employee.

A similar decision was rendered in the case of GE Transportation v Shri Tarun Bhargava(2012) 190 DLT 195, here the court held that since the employee wasn’t governed by the Industrial dispute act, and that the specific relief act didn’t provide for specific performance of a determinable contract, the agreed-upon period of one month’s notice shall validly terminate the employment and no compensation for the period that the petitioner was disabled from the performance.

Further in the discussion on grounds for termination, reference is made to Air India Corporation v VA Rebellow1972 AIR 1343where it was held that in order for an employment contract to be terminated, a lack of confidence in an employee is sufficient grounds. In this specific case, the company stated that since the petitioners’ job was to deal with the air hostesses and act in confidence, the aspect of confidence of the management in his capacity is important. Despite the arbitrary nature of this termination, it shall hold.

The Coronavirus outbreak has led to numerous problems in the country. The chain of demand and supply is disturbed not only in the country but across the world. Though work from is one of the thing, being suggested by most of the companies, there are sectors where work from is not feasible as it includes fieldwork, manufacturing units etc. Certain sectors are having a hard time opting for work from home culture. This includes the banking sector or any sector where data to be shared is highly confidential and needs to be protected. 

All this is obvious to create a huge impact on the business and the job of the employees. Therefore, there arises a need to safeguard the interest of such employees so that they can feed themselves and their families, in these hard times.

Below are a few reasons that employers are listing while terminating an employee during the pandemic:

·        Lack of projects and work available to the employer himself.

·        No access to financial supports due to lack of work and lack of investors.

·        Work from home of remote work is not possible.

·        If an employer and employee have not been able to agree to alternative working arrangements.

·        Consistency of work has been lowered relatively.

·        “Frustration of contract’ grounds wherein the employer would be unable to determine with any certainty how they may be able to resume operations. 

·        Inefficiency.

·        Violation of confidential provisions.

·        Breach of employment contract.

The country has shifted to digitalization due to the sudden outbreak of Coronavirus in the country. It is hard to believe, but its been two months, that people are locked inside their houses and non-essential offices are shut. Most of the companies, employees have been asked to work from home so that that their work is not stopped, and income can be generated. The question which arises during this situation is that what are the rights of the employees under such circumstances?

Remedies available to the employees

For an employee who falls under the category of a ‘workman’, their conditions of service are governed by the Industrial Dispute Act, 1947 (‘Act’).  Section 2A of the Act provides that dismissal of an individual workman will be deemed to be an industrial dispute.

·        The above dispute can be settled by way of adjudication or by conciliation, and in case the matter is settled by conciliation, the dispute comes to an end. In case the dispute is not settled, the dispute is referred to adjudication.

·        When an employee is terminated who is a non-workman, his terms and conditions of service are governed by the letter of appointment or employment contract, provided at the joining date, issued by the employer and the Indian Contract Act, 1872 and the State-Specific Shops and Establishment Legislations as well as the various orders that have been issued by various departments of central and state governments during the lockdown. A non-workman has the right to approach the civil court and/or the court designated under the Shops and Establishments legislation seeking payment of any unpaid dues and/or damages for wrongful termination if the termination was against the terms agreed by the employer.

·        During the nationwide lockdown, the companies can ask the employees to work from home, and for this, the employee would be entitled to full salaries.

·        Talking about the payments to employees, the government on March 21, 2020, issued a circular which provides that even if a work unit is non-functional due to the virus, the employers are entitled to consider the employees as working. The various state government has also issued notices that such employees should be paid.

·        The Maharashtra government also mentioned that no employer can deduct salaries or terminate the employee on the basis of this pandemic. It especially implies on the contract or casual workers.

·        The Ministry of home affairs issued a circular on March 29, 2020, which informed the state governments and ministries to ensure that the employers of all the industries, shops, companies, etc. pay full wages to the employees without any deductions, during the lockdown. 

·        Employers cannot reduce the working hours, to get a reason to reduce the salaries of the employees to control the loss of the business. Moreover, the employers are not entitled to reduce the workforce to safeguard the business from the impact of Covid-19. Both such acts are prohibited by the notification issued by the Ministry of Home Affairs on 29^th March 2020.

·        Employers should make sure that the working hours of the employees are not exceeded, then their actual working hours. Since there is no statute to govern the concept of work from home therefore general employment laws will be applicable.

·        However, these are mere guidelines and not enforceable in the court of law. The employee can send a formal notice to the company explaining the unfair dismissal, if the issue is not settled, then it can be taken to court.

·        The employee has the right to file a case against the employer for unfair dismissal in the Labour Court.

·        Furthermore, the principles of natural justice are still applicable to an employee (Delhi Transport Corpn. V DTC Mazdoor Sabha1991 AIE 101), which shall allow him to be heard and be given due representation during the termination process. Though even in this regard, most companies prohibit the presence of lawyers during the internal termination hearings. Terminated employees are also permitted to raise a claim in the absolute if due notice or time has not been provided to him to formulate a response and justification for the alleged wrongful conduct.

These cases are a sample of the many instances where private employees governing through a contract are able to exert absolute control over the termination of work of a private employee. The states had the option to legislate on the status of such employees when making their respective amendments to the state Shops and Commercial Establishment Acts. However, such changes were only made in the limited scope of procedure of termination rather than any governing principles for the substantial element thereof. One thing needs to be kept in mind, is that an employee has the absolute right to pursue a legal remedy in the instance of wrongful termination; and the employer is mandated through contract law to provide for a dispute resolution mechanism.

Despite all this, the pursuits of an employee wrongfully terminated fall short of reinstatement. As we have seen in precedent above discussed, employment contracts can determine the outcome of a claim made for wrongful employment, and since they are determinate contracts, an employee thus terminated has the capacity to initiate a proceeding in a forum of the mutual choosing, but will never be able to enjoy the full gamut of protection and remedy a workman is privy to.

The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practising advocate  having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of  the Supreme Court and High Courts in different Law Journals.  From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters .

Author :

Kishan Dutt Kalaskar

Advocate (Retired Judge)

Bengaluru-560003

kalaskarnetra@gmail.com

Mob: 9686971935

Bench: Hon'Ble Dr. Chandrachud, Hemant Gupta

Introduction

2020 is coming out wrong for multiple reasons but in terms of gender equality, this year is coming out to be wholesome. First the judgement relating to Permanent Commission of Women in Indian Army and subsequently for PC of Women in Indian Navy has changed the history in the area of defense. 

Background/Facts of the case of Union of India & Ors. V. Lt. Cdr. Annie Nagaraja & Ors.

Six Writ Petitions under Article 226 of the Constitution were instituted before the Delhi High Court. The petitioners, seventeen in number, were women officers who joined the Indian Navy as Short Service Commissioned Officers in the Logistics and Air Traffic Controller cadres and the Education branch. Six of them were officers in the Logistics cadre, nine in the Education branch and two in the ATC cadre. Their grievance is that despite completing fourteen years of service as SSC officers, they were not considered for the grant of Permanent Commissions and were discharged from service.

The second batch of proceedings which has led to appeals before this Court arises from the decision of the AFT at the Principal Bench in New Delhi in a Writ Petition (C) No. 7336 of 2010 batch of six Original Applications. The lead Original Application was instituted by Commander Priya Khurana.

The applicants before the AFT in this batch of cases were seven SSC officers recruited in 2002 in the Indian Navy in the Logistics and ATC cadres and the Education branch. They sought the grant of PCs and challenged the policy document dated 26 September 2008 as unconstitutional to the extent that it operated prospectively and restricted the grant of PCs to a few cadres/branches.

Consequently, there was also a challenge to the implementation guidelines dated 3 December 2008 issued by the Integrated Headquarters of the Ministry of Defense. The officers challenged their release from service on the completion of their tenure of SSC engagement. The AFT held that an alteration has to be based on a reasonable exercise of power. The subsequent decision making the grant of PCs only prospective and confining it to stipulated branches was held to be invalid. The AFT has placed a considerable degree of reliance on the fact that the advertisements on the basis of which the SSC officers were inducted had held out a specific representation that the officers would be considered for the grant of PCs.

The decision of the AFT was subsequent to the earlier judgment of the Delhi High Court in Annie Nagaraja, which is the subject matter of appeals instituted before this Court. The AFT clarified that its direction to reconsider the case of the SSC women officers for the grant of PCs was subject to the decision of this Court in Annie Nagaraja. While directing the consideration of the claim of SSC women officers to the grant of PCs by the Indian Navy, the AFT stopped short of the direction which was issued by the Delhi High Court for the grant of PCs.

The AFT was of the view that the appropriate relief was to direct that the applicants be considered by the authorities and to this extent it disagreed with the absolute relief granted by the Delhi High Court for the grant of PCs.

The AFT accordingly directed the reconsideration of the request for the grant of PCs on the basis of Regulation 203 and the policy decision dated 25 February 1999 within six months.

The decision of the AFT in this batch of cases has, in the course of the submissions, been adverted to as the decision in Priya Khurana v. Union of India, In the appeals arising out of the judgment of the AFT in Priya Khurana, an interim order was passed by this Court on 28 October 2016 directing the continuation in service of the SSC officers in that capacity until further orders.

The present batch of Civil Appeals comes up for adjudication from two decisions, the first in point of time being that of the High Court of Delhi and the second, being that of the Armed Forces Tribunal.

Issue presented before the court

Whether women officers in the Navy be eligible for Permanent Commission or not.

Arguments presented

Mr. Sanjay Jain, learned Additional Solicitor General for India submitted that the Indian Navy does not discriminate between men and women. the size of the Indian Navy is much smaller than the other Armed Forces, as a consequence of which, the pyramidal structure is saturated comparatively quicker than in the Army and the Air Force.

Ms. Haripriya Padmanabhan, learned counsel appearing for the respondent nos. two to six in Annie Nagaraja’s case urged SSC male officers have been granted PCs in various departments of the Navy. The grant of PCs to SSC male officers in certain cadres was halted following the induction of women on SSCs in those cadres. PCs, being granted to male officers in these specified streams must also be extended to women officers inducted on SSCs.

Mr. CU Singh urged that the AFT rendered one common judgment in six OAs. The Union of India having filed an appeal only in one of the cases arising from the AFT, it was urged that the common judgment binds the Union Government and operates as res judicata in the other five OAs. Hence, it was submitted that it is not open to the Union of India to file an appeal only in one of the six cases where a common judgment has been delivered on similar facts.

This Court, in upholding Section 21 of the 1950 Act, held that the exercise of such power must necessarily conform to the restrictions inherent in Article 33 of Constitution. The nexus requirement in Article 33 was affirmed by this Court in Union of India v LD Balam Singh and Mohd. Yunus Khan v. State of UP.

The court held that Hence from 20 December 1991, it was within the contemplation of the Union Government that the policy for the induction of SSC officers, including women, on PCs would be notified within a period of six years. This was because officers who were inducted on SSCs would have tenure of seven years.

Regulation 203, in its own terms, is not restricted in its application to only male officers. Once the appointment of women officers in the Indian Navy was permitted in terms of the statutory notifications dated 9 October 1991 and 6 November 1998, the statutory bar under Section 9(2) stood lifted and women officers inducted on SSCs would be entitled to be governed by Regulation 203.

The court also held that to deprive serving women officers of the opportunity to work as equals with men on PCs in the Indian Navy is plainly discriminatory. Furthermore, to contend that women officers are ill suited to certain avocations which involve them being aboard ships is contrary to the equal worth of the women officers who dedicate their lives to serving in the cause of the nation.

By the failure of the authorities to consider the SSC officers for PCs in terms of the policy communication of 25 February 1999, SSC officers lost out on the opportunity to be granted PCs and all the responsibilities and benefits attached to the grant of PC, including promotions and pensionable service.

The court further held that these SSC officers cannot be left in the lurch and the injustice meted to them by lost years of service and the deprivation of entitlements at the time of retirement must be rectified.

Decision of the court

The statutory bar on the engagement or enrolment of women in the Indian Navy has been lifted to the extent envisaged in the notifications issued by the Union Government on 9 October 1991 and 6 November 1998 under Section 9(2) of the 1957 Act;

By and as a result of the policy decision of the Union Government in the Ministry of Defense dated 25 February 1999, the terms and conditions of service of SSC officers,  Regulation 203, Chapter IX,

The stipulation in the policy letter dated 26 September 2008 making it prospective shall not be enforced;

The provisions of the implementation guidelines dated 3 December 2008, to the extent that they are made prospective and restricted to specified cadres are quashed and set aside

All SSC officers in the Education, Law and Logistics cadres who are presently in service shall be considered for the grant of PCs.

The period of service after which women SSC officers shall be entitled to submit applications for the grant of PCs shall be the same as their male counterparts.

Women SSC officers of the ATC cadre in Annie Nagaraja’s case are not entitled to consideration for the grant of PCs.

In exercise of the power conferred by Article 142 of the Constitution, we direct that as a one-time measure, SSC officers in the ATC cadre in Annie Nagaraja’s case shall be entitled to pensionary benefits.

All SSC women officers who were denied consideration for the grant of PCs on the ground that they were inducted prior to the issuance of the letter dated 26 September 2008, shall be deemed as a one-time measure, to have completed substantive pensionable service.

As a one-time measure, all SSC women officers who were before the High Court and the AFT who are not granted PCs shall be deemed to have completed substantive qualifying service for the grant of pension and shall be entitled to all consequential benefits;

Respondents two to six in the Civil Appeals arising out of Special Leave Petition (C) No.s 30791-96 of 2015, shall be entitled, in addition to the grant of pensioner benefits, as a one-time measure, to compensation quantified at ₹ 25 lakhs each.

MOHD. AHMED KHAN V. SHAH BANO BEGUM AND ORS.,1985

CASE ANALYSIS

INTRODUCTION-

In this groundbreaking case the Supreme Court struggled with the question of compensation to be provided by her husband after the divorce to an aggrieved divorced Muslim woman. The Supreme Court referred to the Holy Quran as the authoritative text with great emphasis on the friction between the Code of Criminal Procedure Code Section 125 and Muslim Personal Law. Although the husband's request not to offer assistance was rejected, the same one faced considerable opposition and was claimed to be against Islamic law. The then government declared the law applicable only during iddat time. The case was subsequently upheld in further rulings by the apex court.

FACTS STATED-

• Shah Bano was offered Rs.200 as a monthly maintenance by her ex-husband after the same had stopped in April 1978 after she was forced out of her house in 1975. 

• In 1978 she lodged Rs 500 a month for maintenance petition in the local court.

• The husband then on 6 November 1978 gave her irrevocable talaq and used it as a shield not to pay for maintenance.

• Furthermore, he argued that for about two years the amount of Rs 200 per month had been paid and an additional amount of Rs 3000 had been deposited in court for iddat period.

• In August 1979 the magistrate ordered the husband to pay a monthly amount of Rs 25 as maintenance.

• A modification order lodged at high court raised the maintenance to Rs 179.20 a month. The same was challenged at the Supreme Court by the husband as a special petition for leave to the decision of the high court.

ISSUES OF THE CASE-

• That that would refer to Muslims under Section 125 of the Criminal Procedure Code.

• Whether the mere payment of Mehr to the divorced husband is sufficient to remove him from any duty to pay for the maintenance of the wife thereafter.

ANALYSIS OF THE JUDGMENT-

In this situation, precedents have been discussed; however, they are not explicitly in line with the legal problems at hand. Whether the husband's payment of mehr on divorce is enough to absolve him of any obligation to pay the wife's maintenance.

"There is no escape from the conclusion that a divorced Muslim woman has the right to claim maintenance under Section 125 and that Mehr is not a sum payable on divorce under Muslim Personal Law." In favor of the ruling in Bai Tahira, the Court reached the above-mentioned decision where Justice Krishna Iyer held that "...paying of illusory sums (referring to 'mehr') by way of customary or personal law provision would be included in the reduction of the maintenance rate but cannot annihilate the rate unless it is a fair alternative." That the Muslim Personal Law provides for any clause in which a amount is payable to the wife 'on divorce'-Referring to the views expressed by the learned scholars (Mulla, Tyabji and Paras Diwan), the Court concluded that "These statements in the textbook are inadequate to establish the assumption that the Muslim husband is not obliged to provide for the maintenance of his divorced wife, who is unable to maintain herself." "The amount deposited through Mehr is usually required to take care of the wife's ordinary requirements, during and after the marriage. Yet these Muslim Personal Law rules do not countenance situations in which the woman can not keep herself after the divorce. We find that applying the application of the statements quoted above to situations in which a divorced woman is unable to support herself is not only wrong but also unfair. They conclude that the scope of such provisions of law must be limited to that subset of situations in which there is no risk of vagrancy or destitution resulting from the divorced wife's indigence.” 

“Since the Muslim Personal Law, which limits the responsibility of the husband to provide for the maintenance of the divorced wife to the iddat period, does not contemplate or take account of the situation provided for in Section 125, it would be wrong to argue that the Muslim husband is in accordance with his personal law, Is not under an agreement to give support to his estranged wife, who can not maintain herself, beyond the time of iddat.”

The Court ruled that if the wife does not have adequate means to support herself, the husband's responsibility to pay maintenance to the wife continues beyond the iddat era.

That Muslims are protected under section 125 of the Law.

Referring to Section 125 of the Code, the Court stated: "In the scheme of these provisions, religion professed by a spouse or by the spouses has no place. If the partners are Hindus or Muslims , Christians or Parsis, pagans or heathens, the interpretation of this clause is entirely meaningless. The explanation for this is axiomatic, in the sense that Section 125 is part of the Criminal Procedure Code, not of the Civil Laws specifying and regulating the rights and duties of the parties belonging to different faiths, such as the Hindu Adoptions and Maintenance Act, the Shariat, or the Parsi Matrimonial Act.

Clause (b) of the Explanation to Section 125(1), which describes 'wife' as having a divorced wife, does not include any restrictive terms to explain the exclusion of Muslim women from its reach-'Wife' means a wife as described, irrespective of the religion she or her husband profess. For the purposes of Section 125, therefore, a divorced Muslim woman, as long as she has not remarried, is a 'wife.' Within that clause the legislative privilege open to her is not impaired by the personal law provisions applied to her.

The Court provided an example of the Islamic Law concerning polygamy in answering this question-It is all too well known that "A Mahomedan may have as many as four wives at the same time but not more. When he marries a fifth wife while he already has four, the union is not invalid, but merely incomplete" The reason gives the wife the freedom to continue to stay with her husband when he contracts another union, to leave 3 or 4 other marriages alone. And held-"It unmistakably demonstrates that Section 125 prevails over personal rule where there is some dispute between the two.

Whether there is any conflict between the provisions of Section 125 and those of the Muslim Personal Law regarding the Muslim husband's liability to provide for his divorced wife's support. The true condition is that if the divorced wife is willing to maintain herself, the husband's duty to provide care for her ends with the expiry of the iddat term. If she can not sustain herself, she is entitled to resort to Section 125 of the Code. The consequence of this debate is that there is no inconsistency between the terms of Section 125 and those of the Muslim Personal Law on the issue of the duty of the Muslim husband to give assistance to a divorced wife who is unable to sustain or maintain herself.

THE COURT REJECTED THE APPEAL, AND HELD-

The husband's payment of mehr on divorce isn't enough to absolve him of the wife's obligation to pay maintenance.

• The husband's responsibility for paying the wife's maintenance continues beyond the iddat duration if the wife has inadequate means to maintain or support herself.

• Article 125 of the Code extends to all people, irrespective of their religion.

• Section 125, if there is some dispute between the two, overrides the personal rule.

There is no dispute between the provisions of Section 125 and those of the Muslim Personal Law on the matter of the duty of the Muslim husband to provide care for a divorced woman who is unable to sustain herself.

CONCLUSION-

• The Shah Bano judgment attracted a lot of opposition on the grounds that it was against the provisions of Islamic law with authoritative bodies against the decision.

• This culminated in the passage of the 1986 Muslim Women ( Protection of Rights on Divorce) Act, which provided for Muslim women to receive a significant one-time payment from their husbands during the iddat period, instead of a fixed monthly payment of as much as 500 – an upper limit that has since been withdrawn.

• The case had again spurred the debate in India on the Uniform Civil Code, but the pressure exerted by orthodox Muslims triggered the cave-in of women's organizations and secularists.

Life of immigrant from legal perspective.

                                                               Authored by Ankit Khetarpal,

                                                               Immigration Attorney,

Law of Immigration is a weapon or tool introduced by nations to prevent others to come to their country and this weapon or tool is mechanized in such a manner that it is released slowly at the whims of the nation to sub-serve its interest and it enables them to permit only those persons to come to their land only if they are useful to them in any manner according to the needs of the nation such as:

a)    Such person or persons are highly skilled, educated, and possess knowledge unparallel to the existing knowledge of their country or when the knowledge available in their own country is scarce while the country needs plenty of knowledgeable persons in those fields. The objective being that when such persons come to their country, they will be a great help to their country, train their men in such fields, shall boost industry, research, invention, economy and provide lot of services to the nation which they are not having or they are not able to meet all their requirements.

b)    Such person’s sub-serves political interest of the nation they being enemy to their enemy, helpful to the nation being close to their friends, helpful in creating a group opposed to their political or nation’s opponent or victims or sufferers get protection on humanitarian ground.  Asylum besides others is one of the forms of permission granted in such cases.

c)    Such persons bring or invest funds, knowledge, invention, skill or any other form of investment and help the economy of the country and they also provide employment to the locals and further help the citizens and other locals of that nation.

d)    Such persons sub-serves the needs of the nation in areas in which they are having scarce availability of men, knowledge, resources, skills, research abilities, or even habits to do the work with great dedication and even work for longer hours and periods. Different ways and means are offered to them to come to their own country.

e)    Sometimes a nation because of habits of its people who are not prepared to do certain jobs lowly in nature or of specified types being ugly, difficult, cumbersome, demands extreme amount of labor, research or work, etc. encourage people from other boundaries to come to their boundaries to fill the gap.

f)      In order to help their citizens in the fields of their known and prescribed choices, they allow the foreign nationals to whom they have married, children of such marriages to enter U.S. and further to help its own citizens they permit them to sponsor their specified relatives and families in accordance with the prescribed laws in that regard.  

How USA has handled the problem of immigration

Like all other countries US has also legislated in handling the problem of immigration in their country.  It has barred the entry of all persons other than their citizens to United State of America unless such persons are permitted in accordance with the system created by the United States of America or in other words such persons hold visa to enter to their country. Visa is conferred both to immigrants and non-immigrants as per the law of the United States.  A non-immigrant is a foreign national seeking to enter the United States on a temporary basis for tourism, business, medical treatment or certain types of other temporary works. An immigrant is a foreign national one who intends to come to United States of America on permanent basis. Even the temporary visas are preceded by permanent visas in some cases. 

U.S. Constitution conferred exclusive right on the Congress to legislate in respect of immigration and areas related to the same.  The first legislation in this area passed was the Naturalization Act, 1790 and thereafter from time to time many amendments have been made in the said law and new legislations have been enacted from time to time including Immigration Acts and presently the principal Act which holds the substantial field of law relating immigration is the Immigration and Nationality Act (INA).

Principally, three federal agencies were given the task of administering and enforcing immigration laws of United States. U.S. Citizenship and Immigration Services (USCIS) takes up and deals with applications for legal immigration. Immigration and Customs Enforcement (ICE) investigates the violations of the immigration laws and takes up the task of prosecuting offenders. Responsibility to keep the borders secure has been vested with Customs and Border Protection (CBP). The said agencies are part of the Department of Homeland Security. Violation of the duties conferred on different agencies and the rights of the applicants and convicting the guilty are taken care of by the Federal and other Courts including directing to grant immigration to those who are entitled to and when the said Agencies failed to grant the same.

 
Permanent Residency, Conditional Residency and Citizenship

For seeking immigration to United Stated, individuals are required to submit a number of detailed applications to the United States Citizenship and Immigration Services. Those who qualify can successfully obtain temporary immigrant visa, conditional residency or get direct or as a follow up lawful permanent residency (a green card), and ultimate citizenship on complying with the requirements for the same. The law provides various routes to gain permanent residency which inter alia include employment to workers, making investments and creating employment, by being refugees or asylees, family-based immigration etc. To gain such status one has to undergo various complicated procedures under immigration laws of U.S. 

Employment-Based Immigration

Persons possessing various defined extraordinary or exceptional abilities, advanced degrees, skills, specialized knowledge, having requisite experience in certain defined areas, professors or researchers, multinational executives, defined quality of skilled workers or professionals, other persons who perform jobs for which qualified or competent persons are not available in U.S., if intends to come to U.S. can apply during the period the window for such application is made open to them for seeking immigrant visa to U.S.  Such persons have to meet all requirements of the application as prescribed and pay the requisite fee fixed for the purpose, U.S. can grant permanent or temporary visa to such applicants up to or short of the permitted limits.

Various Temporary Visa Classifications

Generally, initially Temporary employment-based visa is granted to various individuals whose applications are allowed within the permitted limits. Under this category, U.S. permit employers to hire and petition for foreign nationals for specific jobs for limited periods. Most temporary workers must work for the employer that petitioned for them and have limited rights to change jobs. This category is known as Visas for temporary nonimmigrant workers.

There are numerous categories of temporary nonimmigrants works and such categories keep on changing from time to time.  Such categories include:

1)    L-1 visas relate to visas for intracompany transfers.

2)    H1b Visas relate to both highly-skilled and lesser-skilled workers possessing various degrees and qualifications. H Visas have further various sub categories.  

3)    Q-1 Visas relate to workers of extraordinary or exceptional abilities.

4)    P Visas relate to athletes, sportspersons, persons from entertainment field and other skilled performers.

5)    A Visas of different category relate to diplomatic employees.

6)    R-1 Visas relate to different religious workers.

All such foreign national must comply with all other requirements specified for different categories or classifications.  Beyond the number of visas permitted for each year, no visa can be granted. Such Visas can be for different periods. In addition, the applicants must conform to all other conditions laid down in the law of immigration. Despite fulfilling those qualifications, still the discretion is vested with the Authorities concerned to grant or refuse Visa to different applicants. In certain categories dependents are also permitted subject to their applications and nothing is considered objectionable against them as per the standards laid down for them. Generally, the immigrant must leave the U.S. if their status is terminated either prematurely or by the efflux the period for which it is granted. However, depending on the type of job and alien’s qualification, the alien may be permitted to complete the steps to become lawful permanent resident while continuing to live and work in the U.S. or otherwise.

For permanent immigration, numerical limit is prescribed every year which may include permanent resident, their eligible spouses and minor unmarried children.  This number varies year to year. These Visas are divided into five preference categories.  In some cases, the terms and conditions laid down by the Department of Labor and Secretary of Labor must also be followed.  

For some categories, the sponsor’s first step is to file a petition with USCIS or the foreign national may self-petition.

The final step is with the alien’s application for an immigrant visa at a U.S. Embassy or Consulate abroad or for adjustment of status to LPR if in lawful status in the United States. For consular processing, the immigrant visa application cannot be filed until after USCIS approves the immigrant petition. The number for each category of Visa may be fixed to be different from time to time by the U.S. Authorities.

CONDITIONAL PERMANENT RESIDENT

A foreign national may apply for conditional lawful permanent resident status on the basis of qualifying genuine marriage to a LPR or a citizen. Their children can also similarly petition. Such conditions may be removed by moving a joint petition within two years of such conditional status. Such conditional LPR status may be lost if within two years they failed to file a joint petition to remove the conditional status or failing to appear for the requisite interview or if there is an affirmative termination prior to the expiration of two years, marriage is found to be fraudulent or when there is adjudication and denial of joint petition. However, this right is also lost in case of divorce unless the waiver is obtained for being causing undue hardship or for being battered and in such a case without other spouse such a self-petition can be moved as a VAWA self-petition by complying such requirement for such cases.    

REFUGEE/ASYLEE A FORM OF SEEKING LAWFUL PERMANENT RESIDENT STATUS

Certain categories of individuals, who are not a security threat or risk to the U.S. or is not a perpetrator of persecution, and he  has well founded fear of persecution on the basis of religion, race, nationality, membership in a specified particular social group or political opinion if he is retuned to the home country or the country of his last permanent residence and further such an individual has not committed the certain specified categories of crime can seek permanent resident status in the category of as refugee/asylee. A person in the U.S. can generally apply for asylum within one year of admission. Sometimes later for showing good reason, such application may be entertained later. Once, the foreign national is admitted, he will be allowed to stay permanently in U.S. till they are expelled from the U.S. on their becoming safety risk or if they are fall in the category of prescribed cases for loss of status or if found that they have got the said status fraudulently.  A child of the refugee/asylee, if accompanying or following him, may also be admitted to the said status.  They also can apply for LPR after one year by taking necessary steps in that regard if the foreign national is admissible.  Sometimes, the Attorney Journal may waive the grounds for inadmissibility with some exceptions for humanitarian grounds or for preserving family unity.

OTHER NON-IMMIGRANT TEMPORARY VISAS INCLUDING VICTIMS OF TRAFICKING IN PERSONS OR CRIME VICTIM OF WITNESSES.

Students, vacationers, certain classes of temporary workers and specialized categories foreign nationals on the expiry of their temporary visa status are also considered in certain situations as eligible to seek temporary permanent visa on taking certain permitted actions.

Victims, foreign nationals if present in the United States as a result of severe form of trafficking of persons, and when they will suffer extreme hardship are also entitled to seek T Visa by making a reasonable request for assistance in the investigation or prosecution of traffickers. Their participation in such assistance is not mandatory if they are below 18 years of age or with some exceptions when they are undergoing physical or psychological trauma.

A person under the age of 18 when induced to perform a commercial sex is considered a victim of severe trafficking under Trafficking Victims Protection Act.

Similarly, undocumented foreign nationals who are in U.S. and are victims of severe physical or mental abuse as a result of being victim of criminal activity in respect of crimes like rape, torture, trafficking, domestic violence, sexual assault, incest, female genital mutilation, kidnapping, abduction, hostage, peonage, involuntary servitude, slave trade etc. as defined and is or likely to be of help to Federal, state or local investigation on having the certification of the defined authorities involved in prosecuting the criminal activity are entitled to U Visa.

A foreign national when married to a citizen of U.S. or LPR or a child of foreign national may petition himself/herself for LPR status without the co-operation of citizen or LPR spouse or parent when battered or subjected to extreme cruelty of the defined type by the citizen or LPR when the marriage is legal and in good faith and when possess a good moral character may also seek independently LPR status.

Family-Based Immigration                                    

Family unification is an important principle governing immigration policy. The family-based immigration category allows U.S. citizens and LPRs to bring certain family members to the United States. Family-based immigrants are admitted either as immediate relatives of U.S. citizens or through the family preference system.

Prospective immigrants under the immediate relatives’ category must meet standard eligibility criteria, and petitioners must meet certain age and financial requirements. Immediate relatives are:

·       spouses of U.S. citizens;

·       unmarried minor children of U.S. citizens (under 21-years-old); and

·       parents of U.S. citizens (petitioner must be at least 21-years-old to petition for a parent).

A limited number of visas are available every year under the family preference system, but prospective immigrants must meet standard eligibility criteria, and petitioners must meet certain age and financial requirements. The preference system includes:

·       adult children (married and unmarried) and brothers and sisters of U.S. citizens (petitioner must be at least 21-years-old to petition for a sibling), and

·       spouses and unmarried children (minor and adult) of LPRs.

In order to balance the overall number of immigrants arriving based on family relationships, Congress established a complicated system for calculating the available number of family preference visas for any given year. The number is determined by starting with 480,000 and then subtracting the number of immediate relative visas issued during the previous year and the number of aliens “paroled” into the U.S. during the previous year. Any unused employment preference immigrant numbers from the preceding year are then added to this sum to establish the number of visas that remain for allocation through the preference system. However, by law, the number of family-based visas allocated through the preference system may not be lower than 226,000. The number of immediate relatives often exceeds 250,000 in a given year and triggers the 226,000 minimum for preference visas. As a result, the total number of family-based visas often exceeds 480,000. 

In Fiscal Year (FY) 2017, family-based immigrants comprised 66 percent of all new LPRs in the United States.

The family-based immigration system is summarized in Table 1.

Table 1: Family-Based Immigration System

In order to be admitted through the family-based immigration system, a U.S. citizen or LPR sponsor must petition for an individual relative, establish ties and comply with the formalities accordingly.

U.S. citizens can sponsor family members who qualify as "immediate relatives." These include spouses, parents of a citizen 21 years or older, unmarried children under age 21, and children adopted before turning 16. The government does not limit the number of immediate relative visas approved each year. This means there is no waiting period, other than the time required to process the visa petition.

By contrast, petitions filed by citizens or permanent residents on behalf of more distant relatives are subject to annual quotas. The amount of time these family members must wait to come to the United States will depend on their preference category. Unmarried children age 21 or older are given the most preference. Brothers and sisters of adult citizens are given the least. For those in the lower preference categories, it can take years to obtain a visa.

INVESTMENT AND EMPLOYMENT BASED VISA (EB5)

The Employment-Based Fifth Preference (EB-5) immigrant visa category was created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign nationals. In order to qualify, an EB-5 investor must invest minimum of defined amount for such purposes in a new commercial enterprise, which would create at least 10 full-time jobs for U.S. workers. EB-5 investments are divided into two categories: direct investment and regional center investment.

The initial EB-5 petition, Form I-526, must be submitted with documentation about the new commercial enterprise and documentation about the investor’s source of investment funds obtained through lawful means. He should further submit documents like personal tax returns, evidence identifying other sources of capital, foreign business registration records, defined documents relating to pending court case and administrative proceedings of the previous prescribed period.  The source of funds requirement for investors investing in a direct investment and regional center project are the same. However, USCIS can also ask for lawful path of funds being invested. If the funds were obtained from a third party, proof of funds from the third party must also be obtained.

USCIS requests a substantial amount of documentation to prove lawful source of funds. Although EB-5 regulations do not require investors to prove any amount beyond the investment capital, USCIS has requested investors to also prove lawful source of the administrative fees collected by projects. Many projects charge an administrative fee to cover operational costs and marketing expenses.

A lot of documentation is required for this field of investment and before filing any such application, matter should be got examined by an attorney practicing in the field of EB-5 visas.

After completing the requisite period of initial EB-5 status and after following the conditions laid for the same honestly during the period of EB-5 status, one can apply for LPR status on fulfilling conditions and submitting documentation prescribed in this regard.

U.S. Citizenship

In order to qualify for U.S. citizenship through naturalization, an individual must have had LPR status (a green card) for the requisite period in different categories and must otherwise fulfil all other requisites prescribed in this regard and lot of documentation is required in this regard. Various and different procedures are prescribed in this regard and certain qualifications have also been laid in that regard also.

Conclusion

U.S. immigration law has many complexities and confusions and it keeps on changing fast and new guidelines have been emerging almost every year and even during the year. All this shows that immigration is a diverse area of the law, and attorneys tend to specialize in particular types of cases. For example, an immigration attorney may limit his or her practice to EB-5 category, employment-based petitions, family-based category visa petitions, foreign adoptions, or deportation defense. Immigrants and their families should take it upon themselves to gain a preliminary understanding of the nature of their case, before going about the important task of finding an attorney. Each field is a separate field of specialization and it is advised that the applications of individuals should be handled by experts. Each category has been dealt briefly above and each such category has further ample dimensions, requisite requirements, different periods prescribed, have different quotas, need lot of documentation and if need be evidence may be required to be submitted.  All this is advised to be handled only by an expert.  For more details, kindly visit www.myusimmigrationattorney.com. or www.myincorporationhub.com

The #DelhiHighCourt is the first High Court that has decided on the issue of #rent to be paid during the #Pandemic. It has recently passed a Judgment dated 21-05-2020 in Ramanand and Others vs. Dr. Girish Soni and Anr., where the Court rejected the Application filed by Appellant-Tenants for #suspensionofpaymentofrent, owing to the #Covid19 #Lockdown situation.

To read more, please visit the link below:

http://www.theindianlawyer.in/blog/2020/05/23/delhi-high-court-supports-landlords-during-covid-19-lockdown/

#covid19 #lockdown #rent #tenant #landlord #delhihighcourt #supremecourt

To lessen the double impact of lower #production on #economy and its participants, due to Covid-19 Pandemic, Mr. Shaktikanta Das, Governor, Reserve Bank of India (#RBI), announced various developmental and regulatory policy measures to improve the functioning of markets and market participants, vide Press Conference on 22.05.2020.

To read more, please visit the link below:

http://www.theindianlawyer.in/blog/2020/05/23/rbi-announced-extension-of-moratorium-on-loans-to-save-the-economy-from-pandemic-impact/

#rbi #moratorium #loans #covid19 #lawyered #getlawyered #himanshugupta

#Legalresearch is one of the aspects of study of human behavior, their interactions, attitude pertaining to any law under the #research studies.

Thus, the Indian Lawyer & Allied Services in collaboration with Lawyered brings before you the Episode 3 of TIL Legal Speak, which is about ‘Introduction to Legal Research’.

http://www.theindianlawyer.in/blog/2020/05/23/til-legal-speak-episode-3-introduction-to-legal-research-by-advocate-sushila-ram-varma/

THE CONSUMER PROTECTION ACT,2019-WHAT’S CHANGED FOR THE BETTER!!!!!!!

The Indian Parliament passed the landmark Consumer Protection Bill 2019 on 06.08.2019 by replacing the Consumer Protection Act, 1986, which aimed at providing timely and effective administration and settlement of consumer disputes and related matters. The new Act, 2019 received the assent of the President of India and got published in the official gazette on 09.08.2019 and the same will come into force on the date it is notified by the Central Government. However, the date of enforcement of New Act, 2019 has yet not been announced, but it is expected soon.

The Government instead of bringing an amendment in the 1986 Act, enacted a new Act altogether so as to provide enhanced protection to the consumers taking into consideration  the booming e- commerce industry  and the  modern methods of providing goods and services such as online sales, tele-shopping, direct selling and multi level marketing in addition to traditional methods. The New Act, 2019 proposes a slew of measures and tightens the existing rules to further safeguard consumer rights.

KEY HIGHLIGHTS OF THE CONSUMER PROTECTION ACT, 2019

1. E- commerce transactions are also now the part of New Act:-

The old Act, 1986 was silent regarding e- commerce transactions. But the definition of “Consumer” under the 2019 Act includes all those who buys any goods for consideration or avails/hires any service either through offline mode or online mode, involving electronic means, teleshopping, direct  selling or multilevel marketing. The proposed guideline for E-Commerce firms entails deadline to effect refund request, mandate e- trailers to display picture details of sellers supplying goods and services on their websites and moot the procedure to resolve consumer complaints. The E- commerce companies will also be required  to ensure that personally identifiable information of customers  are protected and should not  directly or indirectly influence the price of the goods or services and maintain a level playing field.

2. Establishment of Central  Consumer Protection Authority  (CCPA):-

The New Act proposes the establishment of a regulatory authority known as Central Consumer Protection Authority (CCPA) under section-10 of CPA, 2019 with wide powers that aimed to protect, promote and enforce the rights of consumers qua misleading advertisements and unfair trade practices as a class. The CCPA will have an investigation wing, headed by a Director General, which may conduct enquiry or investigation into consumer law violations.

The CCPA has been granted wide powers to take suo moto actions against violators. It can initiate preventive action against deceptive trade practices prevailing in the market, can pass direction to recall products which do not adhere to the standards prescribed by the regulatory authorities, can order reimbursement of the price of goods/ services; cancel licenses; and file class action suits, on behalf of multiple consumers which makes it an effective tool to curb mass violation of consumer interest. The formation of this Central authority will ensure prompt action and all unethical trade practices can be curbed on preventive basis.

*There was no separate regulator in the Consumer Protection Act,1986

3. Strict Norms for Misleading Advertisement:-

The New Act, for the first time introduces the definition of misleading advertisement which covers all those information that is deliberately concealed. The CCPA has been showered with the power to take action and impose penalty against misleading and false advertisement as well as against any endorser of such advertisement. The CCPA may impose a penalty of Rs.10 Lakhs for first violation and up to Rs.50 Lakhs on every subsequent violation on a manufacturer or an endorser. In addition, under the New Act false or misleading advertisement published by manufacturers and service providers is now also considered a criminal offence and such manufacturer or endorser may be sentenced to imprisonment for up to two Years.

Endorsement of goods and services, normally done by celebrities, are also now covered within the ambit of 2019 Act. In fact an additional onus has been placed on endorsers, apart from manufacturers and service providers, to prevent false or misleading advertisements. In such cases it become important for the endorser to take the onus and exercise due diligence to verify the veracity of the claims made in the advertisement to refute liability claims.

Thus the Seller at each level of multi- level marketing can be exposed to liability under CPA, 2019 and not restricted to only the manufacture of the products but all entities involved at various stages of production and marketing.

4. Changes in the Pecuniary Juridsiction:-

Revised pecuniary limits have been fixed under the New Act. These limits are far higher than the limits set by the previous act.  

Accordingly, the District Commission (earlier referred to as District Forum) can now entertain consumer complaints where the value of goods and services paid does not exceed rupees one crore which was limited to the value not exceeding rupees twenty lakhs in the Old Act, 1986

The State Commission can now entertain consumer  complaints where the value of goods and services paid does not exceed rupees ten crores which was limited to the value not exceeding rupees one crore  in the Old Act ,1986

The National Commission can exercise jurisdiction where such values   exceeds rupees ten cores but in the Old Act, 1986, the National Commission can exercise jurisdiction where such values exceeds rupees one cores.

The increase in the pecuniary jurisdiction of all three commissions is an encouraging step as it should attract lesser number of claims in appellate commission to an extent thereby ensuring swifter disposal of cases.

5. Complaints can be registered through Online mode also:-

The New Act provides flexibility to the consumer to file complaints with the jurisdictional consumer forum located at the place of residence or work of the consumer, this is unlike the current practice of filing it at the place of purchase or where the seller has it’s registered office address. The New Act also contains enabling provisions for consumer to file complaints electronically and for hearing and/or examining parties through video–conferencing. This aimed to provide procedural ease and reduce inconvenience and harassment to the consumers.

6.  Lets understand “Product Liability” under CPA,2019

The New Act has introduced the concept of “product liability” in Chapter-(i), and made it a new ground for filing a complaint which is one of the most significant addition to this act. The concept is incorporated under Section 34 of CPA, 2019 and brings within its scope not only the product manufacturer, product service provider but also the product seller to compensate for any harm caused to a consumer by defective products. However, who can be made liable under the CPA, 2019, is provided under different sections of Chapter VI of the Act, 2019.

• Under Section-84, a Product manufacturer will be liable if product contains a manufacturing defect or defective in design; or there is a deviation from manufacturing specification; or does not conform to the express warranty, or fails to contain adequate instructions of correct usage to prevent any harm or any warning regarding improper or incorrect usage; or fails to contain adequate instructions of correct usage to prevent any harm or any warning regarding improper or incorrect usage.
• Under Section-85, a Product service provider may be liable if;-

(i) the service provided was faulty or imperfect or deficient or inadequate in quality, nature or manner of performance which is required to be provided by or under any law for the time being in force, or pursuant to any contract or otherwise; or

(ii) there was an act of omission or commission or negligence or conscious withholding any information which caused harm; or

(iii) the service provider did not issue adequate instructions or warnings to prevent any harm; or

(iv) the service did not conform to express warranty or the terms and conditions of the contract.

• Under Section-86, a Product Seller who is not a product manufacturer may be held liable if;-

(i)he has exercised substantial control over the designing, testing, manufacturing, packaging or labeling of a product that caused harm; or

(ii)he has altered or modified the product and such  alteration or modification was the substantial factor in causing the harm; or

(iii)he has made an express warranty of a product independent of any express warranty made by a manufacturer and such product failed to conform to the express warranty made by the product seller which caused the harm; or

(iv) the product has been sold by him and the identity of product manufacturer of such product is not known, or if known, the service of notice or process or warrant cannot be effected on him or he is not subject to the law which is in force in India or the order, if any, passed or to be passed cannot be enforced against him; or

(v)he failed to exercise reasonable care in assembling, inspecting or maintaining such product or he did not pass on the warnings or instructions of the product manufacturer regarding the dangers involved or proper usage of the product while selling such product.

CPA, 2019 while defining a ‘product’ has specifically excluded human tissues, blood, blood products and organs. CPA, 2019 also lists down certain exceptions to “product liability” action, such as, that the product seller will not be liable if at the time of the product has been misused, altered or modified or if the product being purchased by the employer for use at the workplace did not adhere to installation warnings or instructions, or if the nature of the product is such that the user should have known the associated dangers, etc.

7. Addition in the clause of “Unfair Trade Practice”:-

The Consumer Protection Act, 2019 had broaden the definition of “Unfair Trade Practice” by adding three (3) more type of Unfair Trade Practice (which was six in number under the Consumer Protection Act, 1986). The additions are as follows:

(i)”not issuing bill or cash memo or receipt for the goods    sold or services rendered in such manner as may be prescribed”;          

(ii)”refusing, after selling goods or rendering services, to take back or withdraw defective goods or to withdraw or discontinue deficient services and to refund the consideration thereof, if paid, within the period stipulated in the bill or cash memo or receipt or in the absence of such stipulation, within a period of thirty days”;

       Before ascertaining whether it amounts to unfair trade practice, it becomes relevant to determine whether the goods or deficient services have been provided. The section as drafted in its current form pre-determines existence of defective product or deficient service. Separately, even if withdrawn or discontinued, companies could still be held liable under ‘product liability’ or for ‘deficiency of services’.

(iii)”disclosure of consumer’s personal information to any other person unless such disclosure is made in accordance with the provisions of any law for the time being in force or in public interest”.

However, the provision fails to give any clarity whether information can be shared if consent is taken from the consumers.

8.  A New Addition- “Unfair Contract”:-

Under The Consumer Protection Act, 1986, a complaint could be filed only if an unfair trade practice or a restrictive trade practice was adopted by any trader or service provider. Now in New Act, 2019 “Unfair Contract” has also been added which further broadens the ground to file complaints and allows consumers to challenge contracts which are unfair, unilateral and unreasonable.

Unfair contract has been defined to include contracts between a manufacturer or trader or service provider on one hand, and a consumer on the other, having such terms which cause significant change in the rights of such consumer, including the following, namely:—

(i) requiring manifestly excessive security deposits to be given by a consumer for the performance of contractual obligations; or

(ii) imposing any penalty on the consumer, for the breach of contract thereof which is wholly disproportionate to the loss occurred due to such breach to the other party to the contract; or

(iii) refusing to accept early repayment of debts on payment of applicable penalty; or entitling a party to the contract to terminate such contract unilaterally, without reasonable cause; or

(iv) permitting or has the effect of permitting one party to assign the contract to the detriment of the other party who is a consumer, without his consent; or

(v) imposing on the consumer any unreasonable charge, obligation or condition which puts such consumer to disadvantage.

Contractual terms which specify excessive security deposits, provide for unilateral termination or assignment without consent of other party are among the several grounds which render a contract unfair. The 1986 Act did not provide consumers with a single forum against such contracts.

*Cases relating to unfair contracts can  only be heard by the State and National Commission .

9. New Mechanism Inserted- “Alternate Dispute Resolution”:-

The New Act, 2019 now provides for settlement of disputes by way of Alternate Dispute Resolution mechanism, in case there is a possibility of settlement at the stage of admission of complaint or at any later stage, if acceptable to both parties, making the process of dispute adjudication simpler and quicker. A mediation cell will be attached to each District, State and National Commission and its regional Benches for quick resolution. This will help with the speedier resolution of disputes and reduce pressure on consumer courts.

* Legal provision regarding the Mediation was absent in the Consumer Protection Act, 1986

10. Is Healthcare still a service under the New Act?:-

The CPA 2019 in its current form does not explicitly specify healthcare in the list of services listed in the definition of ‘service’, though the New Act, 2019 does not contradict the finding of the Supreme Court in the case of Indian Medical Association v. VP Shantha (“VP Shantha Case”) where the Hon’Ble Court held that patients are consumers as long as they are making some form of payment for the medical service rendered and had also read healthcare into the definition of services.

The statutory interpretation and judicial enunciation are wide open in the context of the Indian Medical                   Association vs. VP Shantha (“VP Shantha Case”) decided by Hon’Ble Supreme Court in 1996 also necessitated to be interpreted de novo. However, it is unclear whether the VP Shantha Case will continue to apply once the CPA 2019 comes into force or not as stiff opposition from the medical fraternity is  also coming which expressed their apprehension that the CPA, 2019 would be misused against them.

CONCLUSION

Everything exists with some pros and cons, and the same applies on the New Act also. On one side it is being appreciated and on the other side it is being criticised in some corners of the retail industry as the compliance costs of the already cash strapped e-commerce sector is bound to swell. However, time will depict the true aspects of the changes brought about by the New Act, 2019, but at present it can’t be ignored that CPA, 2019 is a positive and welcome step towards reformation and development of consumer laws in the light of dynamically changing socio-economic developments. The Act aims to transform the jurisprudence pervading consumer protectionism from caveat emptor (let the buyer beware) to caveat venditor (let the seller beware). The New Act, 2019 attempted to ease and fasten the process of consumer disputes by this or the other ways and undoubtedly this new Act treats the Consumer like a king. It has widened the reach of consumer protection regime in India.