No woman can call herself free until she can choose consciously whether she will or will not be a mother - Margaret Sanger

Abortion policy in India is consistent with safeguarding reproductive rights as envisaged by International Conference on Population and Development (ICPD) and similar other international agreements. It does not justify abortion as a method of family planning. Rather, it promotes the advancement of family planning services to prevent unwanted pregnancies, while recognizing the importance of providing safe, secure, available and appropriate abortion services for women who need to terminate an unwanted pregnancy.

Under criminal law the word abortion is generally used to describe a deliberate termination of pregnancy. The word Abortion in common usage means premature fetal removal during pregnancy.

Abortion is the intentional termination of gestation by any means and at any time during pregnancy from conception to full term.

Abortion as a Fundamental Right

In Suchita Srivastava and V. Krishnanan, the Madras Supreme Court and the Madras High Court respectively upheld the right of women to choose in the case of continuing pregnancy. In Suchita Srivastava, the Supreme Court clearly held that the State has a duty to guarantee the reproductive rights of a woman as a part of her rights to personal freedom, dignity and privacy under Article 21.

Delhi High Court ruled in Laxmi Mandal v. Deen Dayal Hari Nagar Hospital that preventable maternal death constitutes a breach of Article 21 of the Constitution. The High Court ordered that Delhi's NCT enforce the National Rural Health Mission program assurances, including safe abortion facilities, to prevent maternal deaths. The landmark decision gave rise to a state obligation to take steps to end preventable maternal death, including deaths caused by insufficient access to safe abortion.

The Indian Penal Code

Section 312 to 316 of the Penal Code deal with the penal abortions. These sections have been placed under the chapter of offences affecting human body.

(A)                     Section 312 of the Penal Code provides that a person who voluntarily causes a miscarriage to a child-bearing woman will be punished with imprisonment for three years, or fine, or both. The crime cannot be remembered, is bailable, and is not compoundable. If the woman is quick with child the sentence can go up to seven years and fine, unless the miscarriage is induced in good faith to save the woman's life.

(B)                     According to section 313 of the Indian Penal Code, whoever commits a miscarriage to a woman with child without consent, whether the woman is quick with child or not, shall be punished with life imprisonment or imprisonment of either description for a term of up to ten years, and shall also be liable to fine. Section 313 of the Indian Penal Code makes it punishable to cause miscarriage without the consent of the woman. The gravity of the offence is enhanced.

(C)                     When an accused intending to cause only miscarriage to a woman with child causes her death, he is convicted under section 314 of the Penal Code.

(D)                     In compliance with section 316 of the Indian Penal Code the accused does not actually need to induce abortion or intend to kill the inner life. Though not intended or wanted, he does an act likely to cause his death, he would be guilty of this crime. Only after the woman has become' fast' with child and before birth can this crime be committed. Accordingly, under this clause, the death of a fast-unborn child [ advanced pregnancy] by an act of guilty homicide is punishable for up to ten years imprisonment and fine. The crime under section 316 is cognizable by the Court of Session, not bailable, not compoundable and triable.

The Medical Termination of Pregnancy, 1971

The Act, which consists of only 8 sections deals with the various aspects such as the time, place and circumstances in which a registered medical practitioner may terminate a pregnancy. This legalizes abortion in situations where there is a contraceptive failure or where the pregnancy has an adverse effect on the physical or mental termination of the pregnancy, the pregnant woman's consent is a must unless she is a minor or lunatic then consent is necessary from her guardian.

Broadly, the Act allows for the termination of pregnancy on medical, social, humanitarian and eugenic grounds, up to 20 weeks of gestation m by a recognized licensed and sufficiently trained medical practitioner to provide a safe environment.

It can be remembered that the M.T.P. Act does not provide safeguard for the unborn child. Any indirect protection it provides under the Law is merely a by-product arising from the woman's rights. An important feature of the Act is that after twenty weeks it doesn't allow termination of pregnancy. Under the M.T.P. Act, abortion is legal until the second trimester, but it is at medical opinion's absolute discretion. It is important to note that the M.T.P. Act does not permit for induced on demand abortions.

The Medical Termination of Pregnancy Rules and Regulations 1975, define the criteria and procedures for approval of an abortion facility, procedures for consent, keeping records and reports, and ensuring confidentiality. Any termination of pregnancy done at a hospital or other facility without prior approval of the Government is deemed illegal and the onus is on the hospital to obtain prior approval.

Medical Termination of Pregnancy (Amendment) Bill, 2020

On 29^th January 2020, the Union Cabinet approved the Medical Termination of Pregnancy (Amendment) Bill, 2020, amending the Medical Termination Pregnancy Act, 1971. It will be implemented in the subsequent Parliamentary session.

According to a statement, the proposed amendment seeks to raise the upper gestation limit from 20 to 24 weeks for special categories of women which will be specified in the amendments to the Medical Termination of Pregnancy Rules and which will include' vulnerable women including rape survivors, incest victims and other vulnerable women (such as women with different abilities, minors) etc.

Conclusion

There is no freedom, no equality, no full human dignity and person-hood possible for women until they assert and demand control over their own bodies and reproductive process…The right to have an abortion is a matter of individual conscience and conscious choice for the women concerned. - Betty Friedan.

In the larger context of sexual and reproductive health, there is a need to increase awareness of abortion services, particularly among teenagers, by incorporating approaches and interventions within value systems and family and gender relations. To enforce these policies effectively, they need to be assisted by political will and dedication in terms of sufficient resource allocation, training, and funding for services, supplemented by social feedback focused on women's needs.

"GOVERNMENT CALLS FOR CHANGES IN 'POCSO ACT' TO STOP ONLINE CHILD ABUSE"

POCSO ACT (THE PROTECTION OF CHILDREN FROM SEXUAL OFFENSES ACT)

·         The panel that took part in the meeting was created by Rajya Sabha Chairman Venkaiah Naidu in 2019 December.

·         Committee demands for change in meaning of 'child pornography' under the POCSO Act.

·         The committee had recent discussions with Twitter, Facebook and Google.

A panel of parliamentarians, formed by Rajya Sabha chairman Venkaiah Naidu to curb child abuse online, has suggested a dedicated mechanism for dealing with child sex crimes online.  The panel also called for improvements to the definition of ' child pornography ' under the Protection of Children from Sexual Offences (POCSO) Act.

In December 2019, the panel was formed to look at possible legislative provisions to address online child exploitation.

Reportedly, the panel wants the POCSO Act to include the act of "promoting or advocating sexual activity" as an offense to a minor. The MPs may also request an international monitoring platform on cybercrime to promote coverage of sexual crimes against children from around the world. Microblogging website Twitter and global tech giant Google have come under the scanner of the Indian government for not doing enough to prevent porn and allowing for easy access to child abuse videos for young users. A parliamentary committee has been seeking answers on the same.

POLICIES THE SOCIAL MEDIA COMPANIES HAVE ON PORN CONTENT --

TWITTER - Twitter said at the meeting that the microblogging platforms allow users to share porn shot consensually. Twitter also clarified that it does not allow any kind of material for porn revenge or child abuse, and has a zero tolerance policy for child sexual exploitation.

GOOGLE - Google reportedly told the panel that its search engine and YouTube have restricted the search for any such abusive content. The company told the legislature committee that requires YouTube to log in to watch adult or pornographic content to ensure the viewer is over the age of 18.

According to the annual report of the home ministry in October 2019, about 71 videos of child pornography, murder, and gang rape were taken off social media, among other offences. A list of 500 keywords used to search these videos was also collected to look into it and shared with service providers such as Google, Yahoo, Twitter, WhatsApp and Microsoft.

In September 2018, the government launched a website to file complaints about inappropriate online content. More than 10 thousand complaints relating to child pornography online content and child sex abuse was reported on the site until 31 March 2019. The centralized platform aims to provide citizens with easy access so that they can report illegal content.

The committee formed by the Indian Government to further investigate the matter has members from ten political parties and was originally set up as an "informal panel" to study on the web issues related to pornographic content. It was later converted into an ad hoc committee, following the panel's logistics problem.

The panel also has plans to hold talks with the Telecom Regulatory Authority of India (TRAI) and National Commission for the Protection of Child Rights. The panel will eventually also have consultations with civil society groups, child psychiatrists, teachers, experts, parents and government agencies such as the CERT-In and law enforcement agencies.

INDIA AND CYBER BULLYING --

The risk of cyberbullying of Indian children has increased over the years. India ranks much higher when it comes to cyberbullying compared with other Asian countries, according to available data. The rise can be felt with the number of cases we get these days. For instance, a Class V student approached us for a fake Facebook profile created to defame him. Similarly, a Class VIII girl's Facebook account was hacked for personal vendetta.

Studies show that 53% of Indian kids in the age group of eight to seventeen years have been subjected to cyber bullying at least once. Cyber bulling has also had a sociological and physiological impacts on young minds.

STARTING OF CYBER BULLYING --

Cyberbullying can be classified as -direct attacks and proxy bullying. Direct cyber attacks, are those in which the attacker targets the victim via:

·         Whatsapp and messaging on Messenger application

·         Putting up fake information on blogs and private information online

·         Denting the victim's image by posting obscene content or hate messages in chat rooms.

·         Sharing pornographic contents via email or messages

·         Spamming the victim's email address with junk mails

·         Trojans(malicious software) is used for hacking remotely, disable computer system's camera's LED which will notify the user that the camera is on. It is used to follow and exploit actions of kids(specially girls).

·         Creating an online poll with the particular victim's name to body shame and defame or embarass the person

NEW THREATS AND CHALLENGES --

As social media continues to evolve, the threat of child abuse often appears in new avatars such as the Sarahah and Blue Whale Challenges. While the BWC is a web game, Sarahah is another online application that challenges the player to do 50 tasks that often drive the child to suicide and allows people to post anonymous comments that are often rude, offensive, and humiliating.  Anonymity of Sarahah makes it a potential threat, as it can be used for blackmailing as well as to send offensive messages looking for sexual benefits.

Such online requests often expose children to a higher risk of online abuse, bullying or even suicide.

WHY ARE KIDS TARGETTED ?

There is no specific answer to 'why children?' And data indicate that the burden of child abuse often lies on children. This is mainly because it is easy for offenders to use them. Also, online abuse often causes academic loss and disturbs the mental health of a child. when a child has the fear of restrictions of being imposed on internet usage and use of mobile, does not allow the kid to share such incidents with the parents.

PREVENTING CHILD ABUSE --

 Parents can play a vital role in curtailing child abuse, by being more vigilant and following a few guidelines :

·         To restrict and monitor certain websites by using parental monitoring software applications.

·         Set rules for the suitable use of computers, cell phones, and other technologies.

·         Monitoring the child's online activities

·         Report cyber bullying incidents to the nearest police station.

PARENTAL GUIDELINES TO PREVENT CHILD ABUSE --

·         NEVER SHARE PASSWORDS WITH ANYONE, EXCEPT PARENTS

·         Teach your children to save evidence of abuse (harassing messages, sexually explicit pictures, or threatening texts) and not to respond to them

·         They should attend cyber awareness programmes (online/offline)

·         Never allow children to make new friends online

·         Check the confidentiality of their social media account. Teach them to keep personal information private.

Note that online abuse is frightening because the abused child often thinks there is no way out because the abuser can offend anytime, anywhere, even when the child is home. The only way to protect your child from online perverts is to be confidential.

RECOMMENDATIONS OF THE COMMITTEE --

·         The Committee has recommended a number of significant changes to the POCSO Act, 2012 and the IT Act, 2000, with corresponding changes to be made in the Indian Penal Code.

·         A provision to be included in the POCSO Act 2012 in which any written material is used to promote or suggest sexual activities with a person under the age of 18 years; The offense under the Act is rendered by visual representation or audio recording or by any characterization.

·         Another clause to be inserted in the POCSO Act 2012 which stipulates a Code of Conduct for intermediaries (online platforms) to maintain online child safety, ensure age-appropriate content and curtail children's use for pornographic purposes.

·         Under the 2012 POCSO Act, school management should be responsible for the safety of children within school premises, transport services and any other programs that are related to the school.

·         National Cyber Crime Reporting Portal shall be known as the national portal under-reporting criteria in the POCSO Act in case of electronic content.

·         A new section will be included in the IT Act 2000, which provides for punitive measures for those providing pornographic access to children as well as for those accessing, producing or transmitting child sexual abuse material.

·         Union Government shall be empowered to block and/or ban all websites / intermediaries carrying material of child sexual abuse through its specified authority.

·         The IT Act to be amended makes intermediaries responsible for all measures aimed at proactively identifying and removing CSAM and reporting it to the Indian authorities, as well as to foreign authorities. Gateway Internet Service Providers (ISP's) have a significant responsibility for detecting and blocking CSAM websites. It is also for the intermediaries to report to the designated authority, IP addresses / identities of all child porn / CSAM keyword searches / accesses.

Introduction

Marriages are made in heaven as is often said and are solemnized on Earth. The very basis of a societal structure is marriage. It is the base of a family and a society in effect without which there can be no civilization.

Under Hindu law, marriage is considered a sacrament which is eternal and indissoluble. Parliament codified the legislation relating to marriages as the Hindu Marriage Act, 1955. In Hindu Law Monogamy is strictly imposed. Before the Hindu Marriage Act was passed, divorce was not a recognised means of putting an end to a marriage, the only exception being where it was accepted by law, which meant that the laws of dissolution of marriage and monogamy were, to the contrary, subject to a legitimate custom.

Divorce Law in India

Modern society has become quite complex coupled with shifts in socio-economic conditions seconded by the disintegration of the common family system, as well as rapid industrialization and urbanization, education and employment. In addition, the laws granted equal status and women's rights had tremendous impact on the institution of marriage that is no longer regarded as an indissoluble union. There has been a considerable legislative and judicial interference in the gamut of matrimonial laws all over the world. Divorce, previously considered evil, has codified laws that are being substantially modified and liberalised.

Irretrievable Breakdown theory

In India, with regards to the Hindu Marriage Act and Special Marriage Act, the Government of India has attempted to include ‘Irretrievable Breakdown of Marriage’ as a ground of divorce as per the recommendations of the 71^st report of the Law Commission of India.

Irretrievable Breakdown of Marriage is defined as:

“The situation that exists when either or both spouses are no longer able or willing to live with each other, thereby destroying their husband and wife relationship with no hope of resumption of spousal duties.”

In other words, the irretrievable breakdown of a marriage can be described as such a failure in the marriage relationship or such adverse circumstances to that relationship that there is no reasonable probability of the spouses staying together for mutual comfort and support as husband and wife.

That is, for an irretrievable breakdown of marriage there is still no codified law. The Hindu Marriage Act acknowledges few grounds for marriage dissolution in Section 13. But, with the change in social mores and the changing nature of marriage in society, the supreme court has shown particular concern about making irreparable breakup of marriage a basis for divorce.

Reasons the Court will accept for irretrievable breakdown

·       For a period of time the pair did not live together as husband and wife.

·       One partner had sexual intercourse with another and the other partner finds it impossible to continue living together as husband and wife because of this.

·       After being declared a 'habitual criminal' one partner is in prison. (This means that he or she continues to commit crimes and was sentenced to 10-15 years imprisonment because of this.)

·       One partner deserted the other.

·       One spouse manipulated the other, the husband for instance continues to harass the wife.

·       One partner is a drug addict or an alcoholic.

·       The partners don't love each other anymore-they might be too different or they married too young.

The Supreme Court examined certain cases in A. Jayachandra v. Aneel Kaur. And when the respondent gives priority to her career over her husbands ' rights, it unerringly points to disharmony, propagation so disintegration of marital harmony, from which the Court will deduce irretrievable breaches of marriage.

The Court found the marriage broken down irretrievably, and granted the husband divorce. Nonetheless, this is very surprising, as many times in similar circumstances the court has ordered the restoration of marital rights with the notion of an Hindu marriage being sacrosanct rather than issuing a decree for divorce as the very basis of the restitution decree.

Merits of the theory

The validity of the argument, as argued by the jurists, is that marriage, which in practice is called a sacramental institution, should be founded on the basis of a healthy marriage which is acceptance, compromise and mutual respect. If any of the marriage party isn't ready to live with the other party the relationship won't be a happy one. Stretching such a relationship will do no good to each other, rather it will create resentment and dissatisfaction between the parties. Therefore it is important to end such a marriage to protect the sanctity of marriage, to reduce the number of unhappy marriages and to avoid the precious years of life of the spouses from being wasted.

Demerits of the theory

The Law Commission of India has dealt with the demerits of the irretrievable breakdown principle in detail in Chapter 4 of the 71st report. The two primary oppositions addressed in the report are:

·       It will promote divorce. It will encourage partners to end the marriage out of their own enjoyment, or even to any of the partners.

·       Allowing the culprit to take advantage of his own fault by splitting and dissolving the union.

Conclusion

To conclude, it can be said that marriage is an institution which is deeply interested in the preservation of the public at large. It is the family foundation and, in effect, the culture for which there can be no civilization. This foundation presupposes the existence of a platform built on the basis of sound spousal understanding.

If this understanding between the partners is lacking, and the marriage is a persistent disease, then it is best that the marriage should be dissolved with court intervention. The continuation of such a marriage does not serve any useful purpose. Therefore, such marriage should be dissolved on the basis of the "irretrievable breakdown theory for the mutual benefit of both spouses.

In that eventuality the continuation of such a relationship is meaningless, and such marriage should be broken as per the Irretrievable Breakdown of Marriage theory. It's high time we understood the need for Irretrievable Breakdown of Marriage Theory so that couples can have a new and better life, rather than spending their young days in court.

INTRODUCTION OF STALKING INTO INDIAN LEGAL REGIME

Have you witnessed the uncomfortable stalking experience? Whether you're a college student, a professional at work, or a housewife, it doesn't matter— many women in India get stalked daily. The criminals are mostly hanging around in the neighborhood, outside workplaces and schools, etc.

WHAT IS THE BASIC DEFINATION OF STALKING?

Stalking is constant communication, which will make you feel frightened or abused. You may be stalked by someone who watches you or often calls you. Stalkers can also use apps to harass you by sending unwelcome emails or messages from social media. About one in six women in her lifetime have witnessed stalking.  Women are twice as likely to be stalked as men are. Stalking is a crime.

HISTORY OF STALKING AND ITS INTRODUCTION IN INDIAN LAW

The Indian Penal Code, which became a colonial law in 1860 ("IPC"), did not mention stalking as an offence. The only protection for women was for sexual harassment under Section 354, and Section 509 IPC for using words or gestures to insult a woman's modesty. Under IPC section 354, anyone who assaults a woman believing it will offend her modesty is liable to be prosecuted by law. Her sex is the essence  of a woman's modesty. The ultimate test to be seen if the modesty of a woman is offended is to see whether the act or attack will amount to disturbing a woman's sense of decency. The law only makes it illegal if three conditions are met–that is,

a)      The attack must be against a woman,

b)      The perpetrator must have used excessive force, and

c)      Their modesty should be offended.

In addition, the Magistrates did not always consider cases of sexual assault until the Supreme Court unambiguously instructed the Magistrate in Rupan Deol Bajaj v. Kanwar Pal Singh Gill (1995) to accept the complaint under Section 354 read with Section 509. Also a big step in acknowledging women as objects of sexual harassment in various forms was the Landmark judgment Vishaka v State of Rajasthan(1997) discussing sexual harassment at workplace. Another important judgment which broadened the subject's jurisprudence in service law was that of the Apparel Export Promotion Council v. A.K. Chopra (1999) ruled that every act of sexual harassment resulted in violation of the fundamental right of women workers to equality and the right to life and personal liberty.  One of the big stalking-related crimes is that of' eve harassment.' In 2012, the Supreme Court in its judgment of Inspector General of Police v. S. Samuthiram (1999) set out eight guidelines to curb eve teasing. The Court discussed the importance of taking up victim and bystander grievances for eve teasing in public places such as public transportation, educational institutions, cinema theaters, etc.

In a leading case, PRIYA MATOO CASE a young law student, her stalker Santosh Singh, the son of a former IPS officer, raped her and murdered her in her Vasant Kunj home. Mattoo pleaded with police, but nothing happened. Multiple complaints lodged with Vasant Kunj and RK Puram police in February and August 1995 forced Singh to give "police undertakings but they were not disincentive. Mattoo was alone at home on January 23, 1996, when she was raped by Singh and then killed. Afterwards the case was transferred to CBI IN 1996. The trial court convicted Singh in December 1999, giving him the benefit of doubt. The high court ruled and awarded him the death penalty. He was later granted life imprisonment by Supreme Court in December 2010.

In 2013, the Criminal Law Amendment Act was passed through the Justice Verma Committee after the multitude of crimes against women and the increasing violence. Online as well as offline, Stalking has been identified as an offense under Section 354D.  The 2013 Amendment Act also introduced reforms to crimes involving sexual harassment, voyeurism, trafficking, etc., resulting in severe penalties for such offenses. Section 354 (D) of Indian Penal Code,1860 defines Stalking as:-

(1)    Any man who—

(i)                 follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or

(ii)               monitors the use by a woman of the internet, email or any other form of electronic communication,

Commits the offence of stalking;

 Provided that such conduct shall not amount to stalking if the man who pursued it proves that—

(i)                 it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or

(ii)               it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or

(iii)             in the particular circumstances such conduct was reasonable and justified.

(2)     Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.

CLASSIFICATION OF OFFENCE

Punishment-Imprisonment upto 3 years and with fine for first conviction-Cognizable-Bailable-Triable by any magistrate. Punishment-Imprisonment upto 5 years and with fine for second or subsequent conviction-Cognizable-Non bailable-Triable by any Magistrate.

Stalking can also take the form of unwanted telephone calls, computer messages, writing letters, etc., or it can also happen on an online platform when a man watches and harasses a woman on the internet, email or any other form of electronic communication.

INFORMATION TECHNOLOGY LAW AND CYBER STALKING

The Information Technology Act, 2000 was the next step to check offences in the cyberspace. Chapter IX of the Act deals with the offences including identity theft, impersonation, sending obscene material etc. Under this Act, though, cyber stalking as a standalone concept was not addressed directly. What the IT Act was trying to do was address the online stalking consequences. For example, in a situation where several identities are produced to harass a person online, the IT Act defines this provision and explains it as an impersonation offense under Section 66D. Here a person assumes a fake identity with the intention of deceiving or misleading another person using a computer or communication device

There are three forms of Cyber Stalking which are as follows:-

1.      The first is email harassment and can take many forms such as unsolicited, whether it is a scene or a threat message.

2.      Then internet stalking takes place. Here the stalker uses the internet to slander and endanger the victim. In such cases cyber stalking takes on a public dimension rather than a private one. What disturbs this type of cyber stalking is that it is likely to spill into the physical space.

3.      The third mode of cyber stalking is computer stalking which exploits the workings of the internet and the Window operating system in order to assume control over the computer of the targeted victim.

In a leading case in 2016, Shri Deu Baju Bodake v The State of Maharashtra's Bombay High Court investigated a suicide case by a woman who claimed that the reason for her suicide was the accused's constant harassment and stalking. At work the accused would always harass her and insist on marrying her. In addition to the charge for abetment to suicide, the High Court held that the charges under Section 354D should have been registered.

JUDICIAL PRONOUNCEMENT

Kalandi Charan Lenka v State of Orissa (2017)

The informant is a student studying at the Women's College Pattamundai in Pattamundai. Among other items, it is alleged that her father has three daughters and that his first daughter is a mentally retarded girl and that the second daughter is the informant. The victim girl came in her mobile alleging her character while researching unknown obscene messages at School. Before this also from unknown mobile number, pornographic messages influencing the informant's character also came across her father's cell phone. Her father after passing the message became sorry and told the informant-victim about the matter. Thus the victim's wife became mentally disturbed to see these disgusting texts. The written letters containing obscene languages imputing the victim girl's character then came to her father during the year 2015-2016. Those letters came with sexual comment and a template that denigrated the victim girl's character. The messages not only influenced the victim girl's character but also linked the other male members to the victim girl for having sex. The Cyber Cell of the Crime Branch had investigated the same issue, and the High Court held that the accused was prima facie liable for sexual harassment offenses under Section 354A, 354D for cyber stalking under the Indian Penal Code, 1860, Section 66-C for identity theft, Section 66-D for impersonation and Section 67 and 67 for electronic transmission of obscene and sexually explicit content. Therefore the application for the bail was also rejected.   

IMPROVEMENTS IN STALKING LAW

Due to the large cases of violence against women, the Delhi Assembly adopted a resolution in March 2018 amending the law and making the stalking a non-detrimentable offence, which is expected to be tabled in the Winter Session. The price had been high for five of India's most famous accusers. A teenage woman of a lawmaker's alleged rape tried to burn herself outside her state chief minister's home, after her father died in police custody. The guy she accused has sued a high profile journalist for defamation. Another reporter says she has trouble finding work. And a Bollywood actress says she feels her accusations have led to real change in India, though the consequences since she first made them over a decade ago have contributed to her exhausted decision to move to the US.

The year 2018 MeToo movement's backlash aims to launch an open dialog about all forms of sexual abuse that women face in India. The policy must also strongly consider the issue of online stalking to safeguard women's right to be free from cyberspace violence. The law enforcement agencies also need to gain a better understanding of the problem and investigative techniques also need to change to keep pace with changing times. 

#METoo

What is E-invoicing?

E-invoicing or electronic invoicing is a process of validating invoices electronically through GST Network (GSTN) for further use on common GST portal. It does not mean generation of invoices from a central portal of tax department. The GST council has notified that e-invoice is mandatory for registered person whose aggregate turnover in a financial year exceeds Rs. 100 crores.

'E-invoicing' or 'electronic invoicing' is a method where GSTN electronically authenticates B2B invoices for further use on the standard GST portal.

Under the proposed electronic invoicing system, the Invoice Registration Portal (IRP) to be operated by the GST Network (GSTN) which will issue an identification number against each invoice.

E-invoicing benefits

E-invoicing is the new system by which GSTN electronically authenticates business to business (B2B) transactions for further use on the common GSTN portal. Currently, a trade is made directly between the manufacturer and the buyer, without the government having any evidence of the sale. With e-invoicing, a unique number called IRN (Invoice Reference Number) will be given when an invoice is made, it will be submitted to the GSTN portal where pre-validation will be performed. When IRN is released it will also exchange the tax invoice with the receiver.

This system could be a blessing for a nation like India where tax evasion is widespread. Such real-time monitoring of invoices can be done by both vendors and government, leading to a reduction in fraud and fake GST invoices.

Secondly, when it comes to GST return filing process, e-Invoice further improves the automation. Currently GSTR filing requires enormous manual work vulnerable to error. The e-invoicing can provide this process with ease, speed and accuracy. When IRN is released, it will update the Supplier's Annexure–1 & if e-waybill is needed, Part–A of the same will be modified. It will also upgrade the recipient's Annexure-2.

Initiative of GSTN’s E-invoicing

The draft version of the e-invoice format was published in an excel prototype by GSTN and made available for public feedback on 20 August 2019. The same was approved by the GST Council at the 37th meeting on 20 September 2019, with some amendments. ICAI-associated GSTN drafted the format to comply with the GST and other Indian tax laws. Besides these, the format adheres to the standards of the international and various industries. The e-invoice interface looks exhaustive and provides various industries and companies with a single format.

Modes of Generation of E-Invoice under GST

Multiple modes will be made available so that taxpayer can use the best mode based on his/her need. The modes given below are envisaged at this stage under the proposed system for e-invoice, through the IRP (Invoice Registration Portal):

1. Web based

2. API based

3. SMS based

4. mobile app based

5. offline tool based and

6. GSP based.

The Road Ahead

E-invoicing represents a push for a digital economy. Curbing tax evasion and increasing government tax collections may ensure the government does not further raise GST rates. For every record that exists, e-invoices can be generated-from debit or credit notes to vehicle invoices. The resultant positive effect on performance would result in reducing, if not eradicating, mistakes in data entry and greater transparency.

Certiorari

Meaning- Certiorari is a latin word which means "to be fully informed". A writ of Certiorari orders the lower court to deliver its record in a case to the higher court for further reviews.

United States Supreme Court uses Certiorari to select most of the case it hears.

How is Certiorari different from Prohibition?

While the prohibition writing is available during the pending proceedings, it is only after the order or decision has been announced that the certiorari writ can be resorted to.

The conditions necessary for issuing a certiorari writ-

·         There should be a judge, tribunal or officer with legal authority to assess the issue with a duty to take legal action.

·         Such a court, tribunal or officer must have issued an order in that case, tribunal or officer acting without jurisdiction or beyond the scope of the judicial authority vested by statute.

·         The order may also contravene the standards of natural justice or the order may include an error of judgment in determining the facts of the case.

Case

Name of the case-

 CRAWFORD V. WASHINGTON

Summary of the case-

·         Mr. Crawford was charged for attempting murder on a man who tried to rape his wife.

·         Crawford's wife gave witness to the investigating officers regarding the whole incident.

·         During the trail procedure, the prosecution tried to use the statements against Crawford because his wife was not present due to her marital reasons.

·         Crawford fought that the statement was inadmissible under the Sixth Amendments Confrontation Clause.

·         The court said that a defendant has the right to challenge the witness who testifies against him with reasonable opportunity to cross-examine under the Confrontation Clause and that opportunity did not exist in this case.

Facts of the case-

Mr. Crawford was charged with attempted murder and assault of a man he claimed was attempting to rape his wife. The prosecution tried to introduce the Crawford's wife's recorded statement where she described the stabbing. The court allowed the statement recorded on the tape into evidence. Under the state marital right, Crawford's wife was unable to testify. Crawford then appealed and the appeals court in Washington ruled that the inclusion of the taped statement violated Crawford's right of conflict with the Sixth Amendment.

Procedural History-

The state then appealed the decision to the state supreme court that upheld the judgment of the trial court. Crawford brought an appeal to the United States Supreme Court, which granted certiorari.

Rule of Law-

When the declarant is unavailable and the complainant has had an earlier opportunity to cross-examine the witness, past testimony of a witness not present at trial is admissible.

Issue of the case-

Whether a documented police statement made by an unavailable witness is admissible at trial?

--NO.

Judgement-

The Court overturned and remitted the decision of the supreme court of the state of Washington.

Reasoning-

The Court held that the Confrontation Clause of the Sixth Amendment guarantees that a defendant has the right to face witnesses who testify against him with a reasonable opportunity to cross-examine him.

Significance of the case-

Crawford v. Washington established the evidentiary rule that a defendant is entitled to cross-examine witnesses who testify against him at a trial.

Types of Writs : The different types of writs are :

·         PROHIBITION

·         HABEAS CORPUS

·         MANDAMUS

·         CENTIORARI

·         QUO-WARRANTO

PROHIBITION- The word PROHIBITION means 'stay order'. A writ is issued when the lower court or body attempts to violate the limits or powers bestowed on it. After this writ has been issued, proceedings in the lower court, etc. have come to an end.

Case Law on PROHIBITION-

Name of the case-

K.C. DINAKARAN VS. S.P. RAJENDRAN AND ORS.

DATED-23.01.1991

1. This Civil Revision Petition is filed against the Order of the Electoral Court in Election O. P. No. 42 of 1986, filed by the Principal District of Munsif, Tindivanam, 19-1-1990.

2. Brief facts are as follows:—

Election for the post of Vice-Chairman of the Olakkur Panchayat Union took place on 20-6-1986. The only two candidates for Vice-Chairmanship were the nominee and the first respondent. 58 Voters (Panchayat Presidents) participated in the race, including the petitioner and the first respondent. It is the case of the petitioner that he had won 28 votes and the first respondent had won 27 votes and the fourth respondent had ruled three votes invalid. Consequently, when he was about to insert the name of the petitioner as a successful candidate in the records, at the instance of the second respondent, two votes declared invalid were counted again in favor of the first respondent, And finally, the 4th respondent declared that the first respondent had won 29 votes against the 28 votes won by the petitioner. Aggravated by the decree, which proclaimed the first respondent to be a successful candidate, Election O. P. was held. It is seen from the counting the alleged two invalid votes as void votes in favour of the first respondent. Pending the Election Petition, the ballot papers were sent and, after reviewing the same, the Election Court found that there was nothing to indicate that two invalid votes had been counted in favor of the first respondent, as claimed by the petitioner. The Court also dismissed the other claims below, and therefore denied the appeal.

3. Before me, three points were posed by the experienced lawyer appearing for the complainant. One is that as many as 20 votes cast in favor of the first respondent contained marks behind those ballot papers, those votes must be considered as invalid votes as such, contrary to Rule 16 of the Rules of The second argument is that the fourth respondent did not fix the election system by providing the closing time. As a result, one candidate could not take part in the contest. The third argument is that the second respondent, in his capacity as Rajya Sabha Speaker, exerted power and compelled the fourth respondent to count two invalid votes as legitimate votes in favor of the first respondent.Procedure of the Tamil Nadu Panchayat Union Councils (Election of Vice-Chairmen) of 1978. The second argument is that the fourth respondent did not fix the election system by providing the closing time. As a result, one candidate could not take part in the contest. The third argument is that the second respondent, in his capacity as Rajya Sabha Speaker, exerted power and compelled the fourth respondent to count two invalid votes as legitimate votes in favor of the first respondent.

4. Learned counsel appearing for the first respondent submitted that it is not now open to the petitioners to contend with the Exs. to D-20 ballot papers stated in the court below are invalid on the basis of the markings on the back, as the only point presented in the Election Petition and submitted to the Court below was that two votes declared invalid were at the instance of the second respondent, counted as legitimate votes in favour of the first respondent and, thus, the declaration in favour of the first respondent was evil. No such statement that the twenty votes cast in favor of the first respondent must be considered as invalid on the grounds of the violation of Rule 16 of the Rules referred to above has been made either in the petition or before the Court below. He also submitted that the Court found below that there was no evidence to support the petitioner's argument that one of the electors had been prevented from participating in the election due to the failure to note the closing time. That being a matter of fact, it cannot be dealt with in this petition for a civil revision. He also argued that, on the basis of the facts presented to the Court below, the conclusion is that the second respondent was not present at the time of the counting in the counting hall. And, thus, there was no question of his practice either of coercion or power, and this being a matter of fact, can not be dealt with in the petition for revision.

5. I've considered competing submissions. Before we take up the first dispute, we can dispose of contentions 2 and 3 which, in the light of the clear statement made by the learned counsel for the respondent No. 1 in the light of the clear findings made below by the Court on those arguments against the petitioner, it is not open to him to consider the same in this petition for a civil revision. These arguments are therefore rejected.

6. Now let me look at the first point. As argued by the learned counsel for the 1st respondent, we doubt that there is no specific allegation of the invalidity of Exs. D-l to D-20 votes polled favour of the 1 st respondent in the Election petition filed by the petitioner. However, I find that allegations in a general form have been made in the Election Petition which read as follows :—

"With the connivance of the 1st respondent, the President of the Council of the Union advised the voters to write down the serial numbers on the back of the ballot papers, which had already been allocated by the President of the Union, in order to ascertain whether or not the votes had been taken. Those voters cast their votes in favor of the first respondent. The elections held on 20-6-86 for the Vice-Chairman's office are therefore vitiated as they took place under duress and coercion.

7. The question is, in the light of the above allegation and the evidence, is it open to the learned counsel for the petitioner to contend that the votes polled in favour of the 1st respondent and marked as Exs. D-1 to D-20 containing marks by which the voters(Members) may be subsequently classified and declared invalid. In this context, the recent judgment of the Supreme Court in (supra) may, in my opinion, be usefully referred to and applied.

8. In the judgement, their lordships of the supreme court observed-

"The next argument put forward by the appellant's counsel concerns package No. 8 containing 56 ballot papers. 55 ballot papers in that package were rejected by the High Court on the ground that they contained no seal of the rubber stamp of the booth. Counsel argued that, in the absence of clear pleadings in that respect, the High Court should not have taken such ballot papers for scrutiny.

Here again we cannot help the appellant. It may be noted that the High Court while allowing inspection, has not restricted the operation to specified ballot papers. The inspection was permitted in respect of all ballot papers to the credit of the appellant. In the course of such inspection, if a ballot paper which ought not to have been accepted has, in fact, been counted in favour of the appellant, it must also fall to be excluded. There may not be any specific allegation in the pleading in respect of such ballot paper. But the absence of specific averments in the pleading no bar to inspect such ballot papers. When illegality is noticed upon inspection, it must be corrected. Invalid votes, if any, should be excluded, which is precisely the purpose of the inspection of the ballot papers.

As regards the above-mentioned ballot papers, Rule 30(2)(b) of the Rules of Procedure of the Electoral Regulations, 1961 and the Electoral Commission Instructions for Presidents require that, where a mark is made other than the instrument provided for that purpose, such ballot papers be rejected. There is no dispute that the ballot papers in question did not contain a prescribed mark, namely the "cross arrow" mark. This illegality is also confirmed in the report of the Commissioner of this Court. Consequently, they could not be retained in favor of the appellant."

In this case in hand, Exs is not in dispute. D. 1 to D-20 contain the marks other than the cross marks intended for the purpose of balloting. In Exs. andD-9, initials are found apart from the extraneous marks like PMR (Ex D. 5) and ER (Ex.D-9). Rule 16 reads as follows:— 16. Invalid ballot papers.— A ballot paper shall be invalid on which

 (a) there is no cross mark; or

 (b) the cross mark is set in the opposite direction to the name of more than one candidate or is placed in such a way as to make it doubtful to which candidate it is intended to apply; or

 (c) the cross mark and some other mark are set in the opposite direction to the name of the same candidate;

(d) any mark which may subsequently be found by the member shall be made.

In the light of the above Rule, in particular Rule 16(d), these votes cannot be treated as valid votes. However, Exs has been dealt with lightly by the election court. D. 1 to D-20 by stating that, in so far as the 4th respondent-Returning Officer counts Ex.C-1, a vote with an extraneous mark (similar to Exs. D. 1 to D-20) in favor of the petitioner herein, it cannot be said that such treatment was given only to the first respondent. In other words, the Election Court got over the objection by stating that inasmuch as one vote containing extraneous mark polled in favour of the petitioner as well as 20 such votes polled in favour of the 1st respondent having been treated alike, no grievance can be made out of it. This approach is totally wrong and cannot be sustained in the light of the ratio laid down by the Supreme Court (Supra). Their Lordships are specific in their observation, in that, when illegality is noticed upon inspection, it must be corrected. Invalid votes, if any, are to be excluded. Applying the ratio of the decision of the supreme Court in, (supra) these illegalities cannot be ignored. Moreover, the Court below is not very right in observing that there are no allegations or evidence to enable the petitioner to contend that Exs. D. 1 to D-20 are invalid votes. Because, as pointed out earlier, the petitioner has made allegations in a general form in the Election petition and has also given evidence supporting such allegations (vide extracts supra).

9. As a result, a petition for civil revision is allowed. The election of the 1st respondent as Vice-Chairman of the Olakkur Panchayat Union is set aside as invalid and the petitioner is declared as duly elected Vice-Chairman of the Olakhur Panchayat Union. The petitioner is entitled to all costs.

10. Petition was allowed.

Introduction

In 1983, Section 498A was adopted to shield married women from being exposed to abuse by the husband or his relatives. A sentence has been given that stretches to 3 years and fine. The word "cruelties" has been broadly defined to include causing physical or mental harm on the woman's body or health and indulging in acts of violence with a view to pressuring her or her relations to satisfy any unlawful demand for any property or valuable protection. Harassment for dowry falls within the section's sweeping of the latter limb. Creating a situation that causes the woman to commit suicide is also one of the "cruelty" ingredients.

Section 498A of IPC

Section 498A of the Indian Penal Code (IPC) deals with the violence committed by her husband or in-laws or any spouse relative on women after her marriage. This prescribes 3 years of probation and a fine.

This gave the Cruelties a new definition. Cruelty can be described as–

(a) If the act committed is of such a nature that the woman is enticed to commit suicide or to cause herself an injury that may prove fatal. In the case the evidence is required to show cruelty, it was held.

(b) If the act is to harass women or any other person associated with her in order to satisfy unlawful demands.

Need for Section 498A

Male society has always exposed women to violence. These laws help women fight back. Woman feels that they are being heard. In a country like India, there's a lot of need for these laws as-

(a)            9 out of 10 cases are always dowry related. Therefore, these rules are in desperate need of preventing women from being abuse.

(b)            Woman are continually being coerced, tortured, intimidated or harassed for asking something or something else. The IPC's Section 498A lets the woman approach law court and convict the wrongdoer.

(c)            The woman too is subject to mental cruelty in many cases. There is no rule that can help the woman relieve the mental pain that she has endured. Acts like this is helping woman in every way possible.

(d)            Regardless of whether the laws are misused, they cannot be removed from the Indian Penal Code. As it is also necessary to change the rules. There will be some loopholes but one can always add a clause to rectify the problems.

The Indian Constitution uses section 498A of IPC to protect married women in marriage household from cruelty. The provision to protect women from domestic violence was added to IPC.

Section 113A of Indian Evidence Act,1872

The section was enacted to fight the threat of death by dowry. The Criminal Law Amendment Act, 1983 (Act 46 of 1983) incorporated it into the Code. Section 113-A of the Indian Evidence Act was introduced by the same Act to lift the presumption of suicide abetment by married woman. The main aim of I.P.C section 498-A is to protect a woman who is being harassed by her husband or husband's relatives.

Sec. 113-A, Presumption as to dowry death- Where the issue is whether a person has committed a woman's dowry death and it is shown that such a woman was subjected to cruelty or coercion for, or in connection with, any demand for dowry soon before her death, the Court shall conclude that that person had caused the dowry death.

Under this provision, cruelty and harassment is considered the same as within IPC section 498A.

Misuse of Section 498A of IPC

Section 498A is named by the Supreme Court as ' legal terrorism'. The statute is misused or violated by women. Additionally, in most cases, they sue the husband and his family.

(a)  Women use it as a weapon rather than as a shield. In Arnesh Kumar v. State of Bihar, it was reported that there have been arrests of bedridden grandfathers and grandmothers, and even relatives living abroad. Therefore, women have started using it as a tool to detain their husbands if they are not pleased with them. Every year, there are many false reports reported as a result, which raises the pendency of court cases.

(b) A number of cases have occurred when the male is not from India, and he comes to India to marry the woman. He's made to do things that he wouldn't otherwise have done because of extortion and fear of prison. He is being scared of Section 498A.

(c)  Police visit men's office premises, and damage his reputation. If the case is affected the police can also pick up the family. It also needs no evidence before detention. Even this requires no investigation. So, if a minor disagreement occurs, woman can use the section to seek revenge.

(d) Sometimes the presents are mistaken as dowry. So, that can pose a problem again.

Recent case laws

Arnesh Kumar v. State of Bihar (2014) 8 SCC 273

Facts

The wife claimed she was expected to dowry, and she was forced out of the marriage home on failure to fulfil these demands. The husband had failed to apply for anticipatory bail. Hence the husband reached the Supreme Court by special leave appeal.

Holding

In this case, the Court observed that the fact that Section 498A, IPC, is a barely recognizable and non-bailable offence is more commonly used as a tool than as a shield by frustrated women This results in threatening the husband and his family by arresting them under this section and it is more disturbing to see the arrest of bedridden grandfathers and grandmothers without a prima facie case. Consequently, the Court set out certain rules to be followed by the police officer during the arrest subject to Section 498A, IPC or Section 4 of the Dowry Prohibition Act, 1961 and that such arrest must be based on a fair satisfaction with the allegation's genuineness. In addition, even the magistrates must be very vigilant not to require detention easily and mechanically.

SECTION 9 OF TRADE MARKS ACT,1999- ABSOLUTE GROUNDS FOR REFUSAL OF REGISTRATION

SECTION 9 (1) (A) - Which are devoid of distinctive character, that is to say, not capable of distinguishing the goods and services from one person from those of another person.

EXPLANATION - The goods and services that do not have any separate or specific character or identity of its own. The goods and services that are similar to one another and cannot be distinguished.

CASE LAWS-

1.

Laxmikant V. Patel v. Chetanbhat Shah & Anr. on 4th December, 2001

FACTS:

Appellant had a business of Colour lab and studio since 1982 in the name of ‘Muktajivan’ Colour Lab and Studio. In order to expand, Appellant promoted his wife and brother-in-law to open a new colour lab in the name and style of ‘Muktajivan’ Colour Studio at two other localities in Ahmedabad. In 1997, Appellant filed a suit for passing off against the Respondents. The Respondents, who were earlier carrying on similar business in the name of ‘Gokul Studio’, sometime before or after institution of the suit for passing off by the Appellant, adopted the name and style of ‘Muktajivan’ Colour Lab and Studio. Respondents argued that Appellant was earlier carrying on business in the name of ‘M.J.’ and it was in the year 1995 that Appellant substituted ‘Muktajivan’ in place of ‘M.J.’ Respondents also argued that the locality where the Respondents had started their business was away from the area where the Appellant was carrying on his business.

ISSUES:

1. Whether an injunction of passing off can be filed by the appellant against the defendant.
2. Whether the distance between the two businesses matters much in case of injunction.

JUDGEMENT:

In the above case the petitioner files a case in Trial Court of Ahmadabad. The trail court was of the view that appellant carries his business in the trade name ‘Muktajivan’ Colour Lab at least since 1995 and the respondents had taken the name Muktijivan in his business name and had done on or about the date of institution of suit. Trial Court had refused the injunction on the ground that the business of the respondents was situated in other part of the city with a distance of 4-5 kms. 

Appeal was filed in the High Court against the order of the district court. High court was of the view that the respondents’ business had already come into existence on the date of the institution of the suit and therefore issuance of injunction is not possible. High Court was also of the view that there were no pleadings which suggested that other two businesses which uses the name Muktijivan as a trade mark was under the authority of the appellant. Hence finally it was held that injunction cannot be allowed on behalf of the appellant against the respondent. 

Appeal was further filed in the Supreme Court against the order of District Court and High Court. Supreme Court was of the view that an action for passing-off will lie wherever the defendant company’s name, or its intended name, is calculated to deceive, and so to divert business from the plaintiff, or to occasion confusion between the two businesses. Whenever there is any confusion in business, an injunction will be granted immediately even if the defendant is innocent. The three elements of passing off action are the reputation of goods, possibility of deception and likelihood of damages to the plaintiff. If any of the above mentioned element is caused by the defendant then injunction can be allowed. Plaintiff does not have to prove actual damage in order to succeed in an action for passing off, likelihood of damage is sufficient.  Hence it was held that the distance between the two businesses of the plaintiff and respondent is not necessary and it does not matter much and the appeal was allowed.

2.

N. Ranga Rao & Sons v. Shree Balaji Associates & Ors on 4th January 2013

FACTS:

The petitioner was engaged in a business of manufacturing agarbatti sticks and dhoop sticks for more than a century. Petitioner had also submitted that he had honestly and in good means adopted the trade mark Cycle Brand with a picture of a cycle in it in the year 1954 and since then he had continuously using the said trademark domestically as well as internationally. However on one day the petitioner got a notice that a similar trade mark was applied for registration by another company known as Shree Balaji Associates in respect of brooms. The petitioner was totally against this application and filed a case in Deputy Registrar of Trade marks. The Deputy Registrar of Trademarks allowed the application of the petitioner and rejected the application filed by Respondent no.1 that is Shree Balaji Associates. After then the Respondent no.1 had appealed to the Intellectual Property Appellate Board against the order of Deputy Registrar of Trade marks. And the respondent no. 2 that is Intellectual Property Appellate Board allowed the application of Respondent no.1 therefore rejecting the opposition of the petitioner. Aggrieved petitioner filed a case in Madras High Court to restrain respondent no.1 from registering its trade mark.

ISSUES:

1. Whether the petitioner can file a case against respondent no.1  from registering its trade mark.
2. Whether the petitioner had established that his trade mark is a well known trade mark.

JUDGEMENT:

According to section 47 of Trade and Merchandise Mark Act, 1958 defensive registration is something which is only related to invented words and which have become well known and it also does not include any type of picture. Here in the above case the petitioner did not invent the word cycle and also the picture of the cycle was not invented by the petitioner and thus defensive registration is not possible. Here the Court was of the view that the word cycle or the picture of cycle or the word brand was not invented words and so it cannot qualify for defensive registration. It was also held that only an image of a cycle cannot be claimed to be invented and therefore the petitioner had no right in respect of the trade mark cycle brand or the picture of the cycle. It was also held that the petitioner cannot established that the petitioner’s mark was a well known mark because it does not fulfil any conditions which has been mentioned under section 11(6) of Trademark Act  and the petitioner had also failed to show any type of trade connection between respondent no.1 and himself regarding the word and the picture of the Cycle and hence the writ petition which was filed by the petitioner was dismissed. 

Goods and Services Tax (GST) is India's first Indirect tax reform. In July 2017, India implemented Goods and Services Tax (GST) to remove the cascading effect of former indirect taxes and create a broader and seamless tax credit system. GST is an indirect tax for the country as a whole, making India one national unified economy. GST is a single tax on goods and services deliveries. It is a destination-based tax that will only be imposed on value added at each point since input tax credits paid at the time of product purchase are available. The final user will therefore only bear the GST paid by the last dealer in the supply chain, with set-off advantages at all earlier stages.

The concept of Anti-Profiteering

If the rate of tax on the supply of goods or services is reduced or the input tax credit benefit is now available under GST, then a registered individual must pass on the benefit by price reductions. The difference in the price of the products due to the tax differences between GST and previous tax regimes, that difference now needs to be communicated further to the consumer by the company. Under the GST system in India, anti-profit laws have been implemented to curb excessive profit by companies and ensure that the benefits are passed on to the consumer through a reduction in the price of the goods/ services

 It seems reasonable for a firm to profit if it is in an industry where its GST rates have dropped.  Profit is, after all, arguably the point of business. But the policy is not simply focused on the needs of individual companies. Rather it wants to protect the economy as a whole of the country. The GST Council, in particular, does not want to see the GST causing inflation. And it thinks this can happen if businesses profit from the system. That's not unfounded fear. They both experienced intense inflation for two years when Australia and Malaysia introduced the GST.

Anti-Profiteering rules

On 18 June 2016 the GST Council announced the anti-profiting rules. It makes it more important for Indian administrators to keep the price tabs after GST is implemented. India is doing what many countries have done: initiating retail-level anti-profit measures to protect consumers from price swindles.

The Anti-Profiteering Authority is allowed to search for unfair price hikes. It also searches for other circumstances in which companies can lower prices. If the authority considers a company has not passed on its GST benefits, the company may be forced to lower its prices. It may also allow the client to repay the savings along with an annual interest of 18 per cent. The guilty business may have to deposit the refund into the Consumer Welfare Fund if the customer is unable to contact him.

Clause 171 has been incorporated into the CGST Act 2017, which states that it is mandatory to pass on the gain to the customer by means of a commensurate price reduction due to the reduction in the tax rate or from the input tax credit.

The aspects on which benefits are passed to the recipient

The regulations mentioned in section-171(1) of the CGST Act allow companies to pass to the customer the profit resulting from:

·         Lowering the GST rate

·         Raising the input tax credit.

Purpose of the Anti-profiteering provision:

The purpose behind the anti-profit provision is to transfer tax benefits on GST in the form of lower prices onto customers. The government argues that it is important for the following reasons:

·         To track inflationary patterns during the initial stages of the implementation of GST and to evaluate and monitor its long-term effects.

·         To examine whether input tax credits or lower tax rates actually lead to a commensurate price reduction.

·          To develop an honest pricing policy that will help retain consumers under the GST scheme.

The anti-profit provision is designed to ensure that any savings arising from the productive credit supply chain and lower taxes eventually reach the final consumers. The impetus behind GST will be lost if it only helps the companies, not the end consumer.

Why are companies having difficulty in complying

Companies that do lots of b2b transactions are worried that the Anti-Profiteering Authority can target them. We want evidence that their vendors comply with the anti-profit rules to protect themselves. Picture a retailer selling a product to a client for an inflated price. The firm is also selling products to its consumers at an increased rate, based on the price of that supply. But the prices are so high as to concern the Anti-Profiteering Agency. Then it launches an enquiry against the company and decides that it is guilty of profiting. But in fact, the problem was due to the vendors of the company.

If you want your vendors to be accredited and they are willing and able to provide it, then you are in luck. If not, remember that you can't control what your salespeople are doing. But you can build transparent, detailed records which show compliance with your own. Keep quality, detailed accounting records to protect yourself in case the Anti-Profiteering Authority contacts you.