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Month: October 2022

ASYLUM

Meaning

Asylum is a Latin word and it derives its origin from the Greek word “Asylia” meaning inviolable place. The term asylum in common parlance means giving protection and immunity by a state to an individual from their native country. There is no specific definition of Asylum but it can be understood as legal protection granted to people who have fled their home countries due to warship, conflict, persecution, or fear of persecution. It is a possibility to remain in a country either permanently or for a temporary period.  A person who seeks International asylum i.e. an asylum seeker is known as an ‘Asylee’.

In day-to-day conversation, the term asylum is used interchangeably with the term refugee, there is a difference between the two procedurally where a person who is still overseas seeks protection from a nation when given patronage after reaching there is given the title of a refugee whereas in the asylum the person seeks the protection from a nation after reaching there and hence is known as an asylee or asylum seeker.

The main purpose of asylum is to give shelter to those who have well-rounded fear in their home countries of persecution. The Universal Declaration of Human Rights under Article 14 (1), provides that “Everyone has the right to seek and to enjoy in other countries asylum from persecution”.

History

U.S. asylum rights stem from international treaties signed after World War II to protect those who fear or flee persecution. The first agreement, the 1951 Convention Relating to the Status of Refugees, was negotiated by the United Nations in response to the mass immigration following World War II. The United Nations has attempted to establish an internationally negotiated definition of who is admitted as a refugee. Nevertheless, the 1951 Convention only applied to those who had become refugees as a result of events prior to 1 January 1951. The United Nations adopted the refugee concept as set out in the 1951 Convention, but expanded it to include potential refugees in 1967. Protocol on the Status of Refugees. In 1968, the United States acceded to her 1967 Protocol.

Kinds of Asylum

The idea of Asylum remains that of personal immunity from the authoritative steps of a decision maker than that of jurisdictional authority under whose power it falls. There are mainly two forms of Asylum:

(1)Territorial Asylum:

It is allowed on the territory of the country granting asylum. Every sovereign state has the right to control and maintain jurisdiction over its territory, so the decision to extradite or grant asylum to someone is left entirely to its discretion. The state therefore has territorial sovereignty over all its subjects and foreigners. This form of asylum is primarily granted to those accused of political crimes such as inciting hatred, treason, and espionage in their own country. Territorial asylum is based primarily on the domestic laws of the sovereign.

Some examples of territorial Asylum –

1) Idi Amin has been given by Saudi Arabia.

2) Baby Dok has been given asylum by France.

3) Dawood Ibrahim mafia Don is given asylum by Dubai Government.

4) Dalai Lama and his followers were granted asylum by the government of India.

(2) Extra-territorial Asylum:

This form of asylum is usually granted by a country outside its territory, usually in a place that is not part of its physical territory. In such cases, states granting asylum to foreign countries with embassies are called diplomatic asylum. Asylum is also granted to asylum seekers on board warships. They are exempt from foreign jurisdictions operating in that area. Such warships are under the auspices of flag states. This does not apply to merchant ships. Because merchant ships are not exempt from the provisions of international law. Extraterritorial asylum is therefore based on the framework of international legal agreements.

1. Diplomatic Asylum / Asylum in Legation: 

Because the granting of extraterritorial or diplomatic asylum involves the deprivation of national sovereignty, international law generally does not recognize the right to seek asylum in legation facilities. However, asylum may be granted at the legation in the following exceptional cases:

1) Individuals who are physically in danger from violence.

2)  Where there is well-established and binding local custom.

3) When there is a special treaty between the territorial State and the state of Legation concern.
Asylum in consular premises –

2. Asylum on the premises of an international institution –

                          Though International Law does not recognize any rule regarding the grant of asylum in the premises of an International institution, however, temporary Asylum may be granted in case of danger of imminent violation.

3. Asylum in Warship – 

                           There are conflicting views on to grant of asylum in warships, but it is argued that Asylum may be granted to political offenders.

As far as an exile warship is concerned, it may be granted on humanitarian grounds if it is of extreme danger to those seeking it. The right of asylum to warships in the case of legations is therefore recognized in the same way and subject to the same conditions.

4. Asylum in Merchant Vessels – 

Merchant ships are not exempt from local jurisdiction and therefore do not have the power to grant asylum to local criminals. Therefore, if a person who has committed a crime on land seeks asylum aboard a foreign merchant vessel, he or she may be sued by the local police before the vessel leaves a port or when entering another port in the same state. I have. Therefore, the rule applies that no asylum is granted to merchant ships. However, states can grant asylum if they enter into corresponding agreements.

5. Asylum on the premises of international Institutions:

Whether someone taking shelter withinside the premises of an global organization or enterprise could be granted asylum is a query that can not accept with actuality withinside the absence of any rule on this regard and additionally due to loss of practice. However, a proper to furnish transient shelter in an excessive case of risk from a mob can not be dominated out.

                    Thus, in Extra-territorial or diplomatic Asylum, Asylum can be granted in exceptional cases and it is necessary to establish a legal basis in each particular case.

Categories Of The Asylum Seekers

There are essentially 3 classes of asylum seekers, namely, territorial, extraterritorial, and neutral. Territorial asylum is wherein asylum is granted inside the territorial bounds of the country who’s supplying the asylum and is an exception to the exercise of extradition.  It is granted basically for the person that is accused of political offenses, like treason and desertion. Extraterritorial asylum is granted to someone outdoor the territory of the country. It generally describes the ones instances wherein a State refuses to give up someone disturbing who isn’t always upon its very own bodily territory however is upon one in all its public ships mendacity in overseas territorial borders or upon its diplomatic premises inside overseas territories.

Benefits of asylum

Leaving home and moving to another country unsure about their future attitudes is the biggest challenge people can face in life. Protect those who have had to leave their home country. Offer freedom from torture and degrading treatment. They are permeated with the right to freedom of speech and opinion.

In general, saving the lives of people who are outside the jurisdiction of local governments is feared that a fair trial will not be held, or that physical, mental, and economic persecution can be expected if they stay there too long. accepted in some cases.

Humanity shall always prevail, a quote that every country tries to abide by. The benefit of asylum is that it protects the individual from being forced to return to their home country. Their families stay protected at a place where they no longer have to worry about their lives.

You can work and earn despite some restrictions that may be imposed by your host country. Once an asylum seeker is granted the title of refugee, they are given the same rights as are given to citizens of that country, with exceptions such as political rights and respect. Some obtain citizenship of the country in which they were granted asylum. In some cases, people choose the resettlement option for good reasons.

Role of Nationality in the Asylum

The 1951 Geneva Convention on Refugees stipulates that no one shall be discriminated against on the basis of race, religion or national origin. However, a variety of factors are considered when a country decides whether to grant asylum. After submitting the application, the applicant will be interviewed to gather all the information regarding their background, reasons for applying for asylum, etc. States often consider a person’s nationality and background to determine whether a person is in fact in need.

For example, when someone from Syria or South Sudan says they fear persecution or imminent mortal danger due to ongoing unrest in Middle Eastern countries, this indicates the seriousness of their reasons for leaving their home country. It is not a sign of arbitrary discrimination rather it is seen whether the people of a particular nationality or belonging to a linguistic group are facing persecution.

CASE LAWS:

In the case of Colombia vs. Peru-the political leader of the Peru was accused of the crime of instigating a military rebellion. He was granted asylum at limo by the Colombian embassy and was not allowed to leave the country. The matter between Peru and Colombia was then taken to the international court of justice on the question of the right to diplomatic asylum. The court held that diplomatic asylum is suppression of territorial sovereignty and should not be recognized unless the legal basis is established. The state granting the diplomatic asylum must prove its right to grant the diplomatic asylum and the other territorial state should respect it.

Assange v. The Swedish Prosecution Authority

The recent case that has captured a lot of media attention is Julian Assange. He is an Australian editor, publisher, and founder of WikiLeaks who was accused of a rape case and a molestation case by the Sweden government. The Sweden government had filed for the extradition of Assange and the UK Supreme Court ordered his extradition to Sweden in May 2012. In June 2012, he was granted asylum in England at the Embassy of Ecuador. 

The reason was given that his human rights would be violated if he is sent to Sweden. In 2015 Sweden dropped the charges against Assange. In February 2012, the UN declared that he had been ‘arbitrarily detained by the Ecuador embassy. In May 2019 he was sentenced to 50 weeks in jail for breaching bail conditions.  He has also been accused of committing a crime against the United States of America by releasing confidential documents of the United States of America on his website named ‘WikiLeaks’. The USA has been trying to extradite him to their country.

Conclusion

Asylum is a very important part of international law. The turmoil in the Middle East, escalating wars between nations, and her CAA-NRC controversy in India make it more necessary than ever to be prudent and foresight to ensure the proper implementation of the right to asylum. increase. The concept of diplomatic asylum needs to be clarified. Various countries, including India, are required to have clear asylum laws in their own countries. The principle that all nations must adhere to is the principle of humanity.

State recognition

Introduction

Recognition is a process whereby certain facts are accepted and endowed with a certain legal status, such as statehood, sovereignty over the newly acquired territory, or the international effects of the grant of nationality. An example of recognition is when you spot a familiar face in the crowd who is someone you met before. An example of recognition is when someone is given an award to recognize and honor his service.

A new state is born out of an existing State or an old State which disappeared and comes with a new name or by splitting an existing State into two States. If a new state enjoys certain rights, privileges and obligations then it must get recognition as a state, which is very essential. However, there are some minimum criteria required before a State is considered to be a State. A State must get the De Jure (when a state is legally recognized) recognition for considered a State as a sovereign State. Political thought plays an important role in this decision of whether to grant recognition or not. For recognition as a State, it must enter into relations with the other existing States. The elements, theories, and processes are reflected in this article.

Meaning of Recognition

The term “Recognition” means ratification, confirmation, or acknowledgment that something done by any other person in one name had one’s authority.

Recognition of State

“In recognizing a state as a member of the international community, the existing states declare that in their opinion the new state fulfills the conditions of statehood as required by International law” (Oppenheim)

According to Kelsen

The country to be recognized as an international person must be:-

  1. Politically organized
  2. Have control over a definite territory.
  3. Which tends towards permanence.
  4. And must be independent.

Essentials for recognition as a state

Under the International Law, Article 1 of the Montevideo Conference, 1933 defines the state as a person and lays down the following essentials that an entity should possess in order to acquire recognition as a state:

  • Population;
  • Territory;
  • Government;
  • Sovereignty;
  • Control should tend towards permanency.

If these conditions are fulfilled, then the State can be recognized.

Legal Effects of state recognition

When a state acquires recognition, it gains certain rights, obligations, and immunities such as.

  1. It acquires the capacity to enter into diplomatic relations with other states.
  2. It acquires the capacity to enter into treaties with other states.
  3. The state is able to enjoy the rights and privileges of international statehood.
  4. The state can undergo state succession.
  5. With the recognition of the state comes the right to sue and to be sued.
  6. The state can become a member of the United Nations organization.

Theories of state recognition

The recognition of a new entity as a sovereign state is based on two main theories:

  • Consecutive Theory
  • Declaratory Theory

1.     Consecutive Theory

The main exponents related to this theory are Oppenheim, Hegal, and Anziloti.

According to this theory, for A State must be acknowledged as a sovereign by the existing states in order to be regarded as an international person. According to this viewpoint, a State only acquires the status of an international person and is subject to international law after being recognised. Therefore, unless an entity is acknowledged by the existing States, even though it exhibits all the features of a state, it does not acquire the status of an international person.

This theory does not imply that a State does not exist unless it is acknowledged, but rather that a State only acquires exclusive rights and obligations and comes under the jurisdiction of International Law upon recognition by other States that are already in existence.

Criticism of the theory

This theory has been criticized by several jurists. A few of the criticisms of this theory are:

  • This theory is criticized because unless a state is recognized by other existing states, rights, duties, and obligations of the statehood community under International Law are not applicable to it.
  • This theory also leads to confusion when a new state is acknowledged and recognized by some of the existing states and not recognized by other states.

2      Declaratory Theory

In support of the Declaratory Theory of Statehood, Wigner, Hall, Fisher, and Brierly are the leading figures. This theory holds that any new state can form without the approval of any current states. According to Article 3 of the Montevideo Conference from 1933, this hypothesis has been established. According to this theory, a new state’s existence is independent of whether or not it is acknowledged by an older one. Under international law, a new state has the right to preserve its integrity and independence even before being acknowledged by other governments. The followers of the theory consider the process of recognition as merely a formal acknowledgment of statehood by other states.

Criticism of the theory

Critics have also attacked the declarative view of statehood. This theory has drawn criticism on the grounds that it cannot be used in isolation to determine whether a state should be recognised. Declaratory theory is used when a state with certain essential characteristics declares itself to be a state and can then exercise its international rights and obligations; however, consecutive theory is used when other states recognise the state’s existence and grant it the legal privileges associated with that recognition.

Modes of Recognition of a State

  1. De facto Recognition.
  2. De jure Recognition.

These are the two modes of recognition.

De facto Recognition-  It is the process of acknowledging a new state by a non-committal act.

  • De facto recognition is a provisionally grant.
  • It is the first step to the next mode of recognition.
  • It is a temporary and factual recognition as a state
  • It can either be conditional or without any condition.
  • A test of control for newly formed states.

When the other existing countries have an opinion that the new state does not have enough capacity but the new state holds sufficient territory and control over a particular territory.

Example: The Soviet Union was de facto recognized by the government of the UK in 1921.

De jure recognition

When the other existing countries have an opinion that the new state has all the eligible capacity then such a state will be recognized by the de jure recognition. To grant recognition under the de jure method there is no need for the fulfillment of the first mode.

  • It is granted when the newly formed state acquires permanent stability and statehood.
  • It grants the permanent status of a newborn state as a sovereign state.

Example: The Soviet Union was given de jure recognition Soviet Union was in 1924.

In conclusion, there is no distinction between de facto and de jure as it is for the states to give effect to the internal acts of the recognized authority. This was held in the case Luther v. Sagar . [(1921)3 KB 532]

The distinction between De Facto and De Jure Recognition

S.No.De facto RecognitionDe jure Recognition
1.De facto recognition is a provisional and factual recognition.De jure recognition is legal recognition.
2.De facto recognition is granted when there is the fulfillment of the essential conditions of statehood.De jure recognition is granted when the state fulfills all the essential conditions of states along with sufficient control and permanency.
3.De facto recognition is a primary step towards the grant of de jure recognition.De jure recognition can be granted either with or without the grant of de facto recognition.
4.De facto recognition can either be conditional or non-conditional.De jure recognition is a final and non-conditional recognition
5.De facto recognition is revocable in nature.De jure recognition is non-revocable.
6.The states recognized under this mode have only a few rights and obligations against other states.The state recognized under this mode have absolute right and obligations against other states.
7.The state with de facto cannot undergo state succession.The state with de jure recognition can understate succession.
8.The state with de facto recognition cannot enjoy full diplomatic immunities.The state with de jure recognition enjoys full diplomatic immunities.

The Government gains sovereign immunity from being sued in the courts of a foreign State that so recognises it as soon as the de facto recognition is granted. De facto recognition has the same historical roots as de jure recognition, hence in these situations, it makes no difference whether it is granted. In a number of cases, including Bank of Ethiopia v. National Bank of Egypt & Ligouri, this rule has been used (1937) The Arantzanu Mendi (1939) 1 All ER 719. 3 All ER 8. When a de jure administration that has been ousted and a de facto government that has just been recognised clash over issues pertaining to the region that the de facto government,the rights and status of the de facto government will prevail.

Forms of State Recognition

When a newly formed state is recognized, its declaration can be made in two forms:

  1. Expressed Recognition
  2. Implied Recognition

1. Expressed Recognition

The declared form of recognition is one in which an existing state expressly declares or notifies a new state of its existence. Any express or formal action, such as sending or publishing a proclamation or statement to the other party, might be considered express acknowledgement. Unless the recognising state specifies differently in the proclamation, when a state is acknowledged expressly, it is recognised de jure.

2. Implied Recognition

Whenever an existing state implicitly recognises a newly established state, it is referred to as an implied recognition. Any inferred method through which a present state treats a newly constituted state as an international person can be used to provide implied recognition. There is no formal announcement or declaration granting the inferred credit. It depends on the circumstances if recognition is made implicitly.

Conditional recognition

Conditional recognition refers to the acceptance of a state under the condition that it fulfil certain requirements in order to be recognised as a sovereign state. Conditions like freedom of religion, respect for the law, democracy, and human rights are different from state to state. Any state that is recognised already has to meet the prerequisites for having the status of a sovereign state, therefore when a second criterion is added, recognition becomes conditional.

Criticism

Conditional recognition is criticised by several Jurists. According to the argument that recognition is a legal procedure, no further restrictions should be applied to it beyond those recognised by law, conditional recognition is condemned. Criticism also stems from the fact that recognition should still be true even if the recognised state fails to meet the requirements that accompanied it.

An example is Palestine Liberation Organization (P.L.O.), which is recognized by many States including India. In contrast to the de facto government, governments-in-exile lack effective control over the territory of a State and have been accorded de jure recognition.


Withdrawal of Recognition

1. Withdrawal of De facto recognition

In accordance with international law, a state that has received de facto recognition may have that recognition revoked if it does not meet the requirements for statehood. The recognised state has the option of declaring its intent to withdraw recognition or informing the authorities of other recognised states. A public announcement can also be made to announce the withdrawal.

2. Withdrawal of De Jure recognition

Withdrawal of de jure recognition is a very debatable issue under International Law. Withdrawal of a de jure recognition is a very exceptional event. If strictly interpreted, the de jure recognition can be withdrawn.

De jure acknowledgment is of a legal nature, even though the process of recognition is a political act. De jure recognition is revocable, according to jurists who view it as a political act. A state can only have its de jure recognition revoked when it no longer possesses the necessary elements to qualify as a state or under other extraordinary circumstances. The recognising state may expressly revoke this form of recognition by making a public announcement.

Recognition of government

The government is a crucial component of statehood for each nation. When a state is created, its administration occasionally changes. It is not necessary for the existing state to recognise the new government when it arises as a result of a revolution; but, this requirement applies when the new government arises as a result of a routine political action.

For recognising the new government established out of revolution, the existing states need to consider that:

  1. The new government has sufficient control over the territory and its people or not.
  2. The new government is willing to fulfill international duties and obligations or not.

When the existing states are satisfied that the new government resulting from the revolution is capable of fulfilling the conditions mentioned above, then the new government can be recognized by the existing states.

Civil Air Transport Inc. v. Central Air Transport Corpn. (1952) 2 All ER 733. In this case, the court held:

  1. Retroactivity depends upon intention.
  2. Where there is a clear date mentioned, recognition takes effect from that date (mentioned) Thus, it is an exception to the general rule of retroactivity.
  3. Acts of previous de jure government cannot be invalidated by subsequent de jure recognition of new government.
  4. Prima facie, recognition operates retrospectively not to invalidate the acts of a former government, but to validate the acts of a de facto government, which has become the new de jure government. It may be noted that where a State is granted de facto recognition initially and de jure recognition later on, the effect of recognition starts from the date of de facto recognition. It may be regarded as a prima facie rule (Starke).

India’s practice is in conformity with the norms and principles of international law as well as general practice of States. In recognizing States, India had accorded recognition as soon as the conditions of Statehood had been fulfilled. As a matter of general policy, India has attached primacy to de factoism and has generally recognized the supremacy of de facto regimes. Another striking feature of India’s recognition policy is that it has adopted the broader version of Stimson doctrine and, as a matter of policy, has denounced illegal territorial acquisitions and unlawful governments.

By recognizing Israel in 1950, though not establishing diplomatic relation with her (till 1992), the Government of India has clearly proved weighty reasons for thinking that it distinguishes between recognition as a legal act and the establishment of diplomatic relations as a purely political act. The recognition of Palestine Liberation Organization (PLO) affirms India’s strong commitment to the principle of self-determination and its long-standing support to national liberation movements.

Conclusion

It is necessary to recognise the state in order for it to be granted all the rights that come with being a statehood community under international law. Although there is disagreement between the Consecutive Theory and the Declaratory Theory of Recognition among various jurists, we can get the conclusion that the theory used for recognition is somewhere between the two.

De jure or de facto recognition confers obligations, rights, and privileges. De jure recognition confers absolute rights, liabilities, and privileges on a state; de facto recognition confers only limited rights, privileges, and duties. The state’s recognition has an excessive amount of political sway on the global stage.

In order to prevent a newly established state from being recognised, powerful states frequently put up barriers. It may even be revoked if the recognising state believes the new state does not meet the requirements to qualify as a sovereign state. De facto and de jure recognition vary depending on the circumstances and can be done in either an express form or an implied form.

Drugs and Cosmetics Act 1940

Drugs Enquiry Committee was appointed by the Government in 1931 under the chairmanship of Colonel R.N.Copra to have control over the import, manufacture and sale of drugs. Thus Finally, to control the import, manufacture, distribution and sale of drugs and cosmetics, the Drugs and Cosmetics Act was passed on 10th April 1940 by the Indian Legislature.

The drug is an essential commodity and is required to be regulated in terms of its import, manufacture, sale and distribution. The Central Government and State Government are charged with the responsibility of providing the drugs of desired quality to needy patients and in order to ensure this primary obligation of the Government, the network is required to be developed to
root out adulterated misbranded and spurious drugs from society.

Objective

  1. For preventing substandard drugs, probably for treatment and preserving high medical standards.
  2. For controlling the import, manufacture, distribution, and sale of drugs and cosmetics by licensing.
  3. Ensuring that the manufacture, distribution, and sale of drugs and cosmetics are done by qualified persons only.
  4. For controlling the manufacture, and sale of Ayurvedic, Siddha, and Unani drugs.
  5. Establishment of Drugs Technical Advisory Board (DTAB) and Drugs Consultive Committees (DCC) for Allopathic and Allied drugs and Cosmetics.

Salient features of the Drugs and Cosmetics Act

The Act has made a significant effort toward regulating the pharmaceutical industry in India and hence ensuring the protection of the health and safety of the public. Some of the salient features of the Act can be summed up as follows:

  1. The maximum penalty is life imprisonment and a fine of Rs. 10 lakhs or three times the confiscated goods’ value, whichever is greater.
  2. Other gazette officers, in addition to officers from the Drug Controller’s Office, are authorised to initiate prosecution under the Act; some of the offences are cognizable and non-bailable;
  3. Specialised courts for the trial of offences covered by the Act;
  4. Provision for the aggregation of minor offences.

Definitions

1. Drug( Sec.3)

(i) All medicines for internal or external use of human beings or animals and substances used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings or animals including, preparations applied on human body for the purpose of repelling insects like mosquitoes.
(ii) The substances other than food which may affect the structure or any function of the human body or used for the destruction of insects or vermin which cause disease in human beings or animals as specified from time to time by the Central Government by notification in the Official Gazette.
(iii) The substances used as components of a drug including, empty gelatin capsules.
(iv) The devices used for internal or external use in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette after consultation with the Drugs Technical Advisory Board (DTAB).

Cosmetic

It means any article intended to be sprayed, poured, rubbed or sprinkled on, introduced into, or applied to the human body or any part for cleansing, beautifying, promoting attractiveness or altering the appearance. It also includes any articles intended for use as a component of cosmetics.

Ayurvedic, Siddha or Unani Drugs

These include all medicines used for internal or external purposes or used in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings or animals and manufactured exclusively in accordance with the formulae described in the authoritative books of Ayurvedic, Siddha and Unani Tibby Systems of Medicines specified in the First Schedule to the Drugs and Cosmetics Act, 1940.

Gudakhu

It is a tobacco product used for rubbing against human teeth. It contains tobacco powder, lime and molasses along with red mineral matter. It is a cosmetic within the provisions of the Act.

Patent or Proprietary Medicine

It means:
(i) In relation to Ayurvedic, Siddha or Unani System of Medicine, all formulations containing only such ingredients mentioned in the formulae described in the authoritative books of Ayurvedic, Siddha or Unani System of Medicine specified in First Schedule to the Act but do not include the medicine .administered by parenteral route.
(ii) In relation to any other system of medicine including, allopathic, a drug presented in a form ready for internal or external administration of human beings or animals and which is not included for the time being in the editions of Indian Pharmacopoeia or any other Pharmacopoeia.

Misbranded Drug (Sec. 9)

A drug is considered a misbranded drug:
(i) if it is not labelled in the prescribed manner,
or
(ii) if it is so coloured, coated, powdered or polished that damage is concealed or it is made to appear of better or greater therapeutic value than it really is, or
(iii) if the label or container or anything accompanying the drug bears any statement, design or device which makes any false claim for the drug or gives misleading information.

Adulterated Drug (Sec.9A)

A drug is considered to be adulterated:
(i) if it consists in whole or in part of any filthy, putrid, or decomposed substance, or
(ii) if it has been prepared, packed or stored under poor sanitary conditions whereby, it may have been contaminated with filth and rendered injurious to health, or
(iii) if the container of the drug is composed in whole or in part of any poisonous substance which may render the contents injurious to health, or
(iv) if it contains a colour other than the one which is prescribed, or
(v) if the drug contains any harmful or toxic substance which may render it injurious to health, or
(vi) if the drug is admixed with any substance so as to reduce its quality or strength.

Manufacture in relation to Drugs or cosmetics.


Any process fully or partly used for making, altering, ornamenting, finishing packing, labelling, breaking up or otherwise treating or adopting any drug/cosmetic with a view to its sale or distribution but, does not include the compounding or dispensing of any drug or the packing of any drug or cosmetic in the ordinary course of retail business.

Spurious Drug (SEC.9B)


A drug is deemed to be a spurious drug:
(i) if it is imported under a name which belongs to another drug, or
(ii) if it is an imitation of or a substitute for another drug or if it resembles another drug in a manner likely to deceive or bears upon it or its label or container the name of another drug, or
(iii) if it has been substituted wholly or in part by another drug substance, or
(iv) if it claims to be the product of a manufacturer or company of whom it is not truly a product.

Misbranded Cosmetic(Sec.9C)

A cosmetic shall be deemed to be misbranded:
(i) if it contains a colour which is not prescribed, or
(ii) if it is not labelled in the prescribed manner, or
(iii) if the label or container or anything accompanying the cosmetic bears any statement which is false or misleading.

Spurious Cosmetic(Sec.9D)

A cosmetic shall be deemed to be spurious:
(i) if it is imported under a name which belongs to another cosmetic, or
(ii) if it is an imitation of or a substitute for another cosmetic; resembles another cosmetic in a manner likely to deceive, or bears upon it or upon its label or container the name of another cosmetic, or
(iii) if the label or container bears the name of an individual or a company purporting to be the manufacturer of the cosmetic which individual or company is fictitious or does not exist, or
(iv) if it purports to be the product of a manufacturer of whom it is not truly a product. Schedules to the Act and Rules [2]
There are two Schedules to the Act and 35 Schedules to the Rules.

The Schedules to the Act

First Schedule: It comprises the list of books of references for Ayurvedic, Siddha and Unani medicines. There are 57 books of Ayurveda, 30 books of Siddha and 13 Unani Tibb systems listed in the Schedule which are used for different formulations in accordance with the provisions of the Act.

Second Schedule: It comprises the standards to be complied with for imported drugs, manufacture of drugs, their sale, stocking and storage etc.

Drug Technical Advisory Board (DTAB) :

Drugs Technical Advisory Board is constituted by Central Government and its works to advise the Central Government and State Government on technical matters(Advise technical bases) It is a statutory board established by the Central Government under the provisions of this Act to advise the Central Government and State Governments on all technical matters pertaining to the Act, as well as to establish guidelines for types of formulations as and when requested by the Central Government. It is a technical advisory body composed of members who are ex-officio, nominated, and elected. The DTAB has a total of 18 members who represent various aspects of the pharmacy and medical professions in the country. The Chairman of the DTAB is the Director General of Medical and Health Services, Government of India, and the Member Secretary is the Drugs Controller General of India. The DTAB’s headquarters are located at the ministry of Health and Family Welfare, Government of India, Nirman Bhavan, New Delhi.

Drugs Consultative Committee (DCC) 

It is the Advisory Body appointed by the central government under Section 7 to advise the central and state governments, as well as the DTAB, on matters pertaining to the uniform implementation of DCA and Rules provisions. The DCC is made up of two representatives nominated by the central government and one representative each from the state government and the union territory. The state government or union territory usually appoints the Director of Drug Control Administration or Drug Controller of the State to this Council.

Central Drug Laboratory (CDL)

The Act directed the establishment of a Central Drug Laboratory (CDL) under Section 6 in Kolkata, and it will be headed by a director appointed by the central government. It is the “Statutory Analytical Laboratory for drugs and cosmetics under DCA whose decision with regards to analysis is final in the court of law.” 

Functions of the Central Drug Laboratory

The CDL is responsible for performing various functions, which are:

  1. It analyses drug and cosmetic samples sent by customs collectors and different courts.
  2. As directed by the central government, it advises the central government, state governments, and union territories on drug and cosmetic analysis aspects, and it also undertakes analytical work of a particular nature for samples sent by the central government and state governments.
  3. It may accept samples for analysis in exchange for a fee from private parties, consumer organisations, and so on.
  4. It is involved in research for the development of newer drug and cosmetic analysis techniques.


Drug Inspector :

In relation to any drug or cosmetic, Drug Inspector appointed by Central Government or State Government under section 21; or
In relation to Ayurvedic, Siddha or Unani systems of Medicine, a Drug Inspector appointed by the Central Government or State Government

Inspection of drugs and cosmetics:

The central and state governments are empowered to nominate inspectors for the purposes of inspection of drugs and cosmetics, having the necessary qualifications, in various areas with such powers and obligations as may be prescribed. However, it is not possible to nominate any person who has any financial interest in importing, producing or selling drugs or cosmetics as an inspector.

Role of an Inspector, powers and the procedure of Inspection:

Here, every Inspector is deemed to be a public servant within the meaning of section 21 IPC and is officially subordinate to the authority, specified by the appointing government. According to section 22 of the act, which defines the powers of inspectors, they have multifarious powers including the power to inspect, conduct searches, examine samples, call records etc. They can, therefore, inspect any premises wherein any drug or cosmetic is being manufactured, sold, stocked or exhibited or offered for sale or distribution or where any other related activity is being taken with respect to them. Further, an inspector can, on a reasonable belief, search any person who may have secreted any drug or cosmetic or enter and search any place on a similar belief. Moreover, the provisions of Cr.P.C. apply to any such search or seizure as they apply to any search or seizure made under the authority of a warrant issued under section 94 of the Code.
 

The Procedure of Inspection has been defined under section 23 of the act, it explains the different courses of inspection for different scenarios. Such as the procedure for taking a sample of a drug or cosmetic for the purpose of test or analysis, where the sample is taken from manufacturing premises and where an Inspector conducts a search of a person, place or vehicle regarding any secreted drugs or cosmetics. After all the aforementioned prerequisites are covered under the procedure of Inspection, Section 25 requires a government analyst to whom a sample of any drug or cosmetic has to be submitted. And, the same shall be received by any person or any recognized consumer association.

Penalties under the Drugs and Cosmetics Act, of 1940 

The offences and penalties under the Act can be summed up as follows:

  • Any adulterated or counterfeit drug or cosmetic imported into the nation in contravention of the Act’s requirements is punishable by up to three years in prison and a fine of up to 5,000 rupees.
  • Any medicine or cosmetic other than the one mentioned in the above point that is illegally imported is subject to a six-month prison sentence, a fine of Rs. 500.00, or both.
  • Any medication or cosmetic imported in violation of the terms of a notification issued under Section 10 A is punished by up to three years in prison or a fine of Rs. 5000.00

CASE LAWS

Sri G Ramesh Reddy vs The State By Drugs Inspector SC held that The judge, reaffirmed rulings in earlier cases of a similar kind, holding that a director may not be involved in a company’s daily operations. As a result, the director cannot be immediately implicated simply because of his position unless there is prima facie evidence that the director performed a specific act that led to the commission of the crime.

Court held in Commissioner of Central Excise, Calcutta v. Sharma Chemical Works reported in 2003 (5) SCC 60 has also disapproved the approach of the Department in holding that the product was a cosmetic only because it was not sold by chemists or under doctors prescription. This, according to the decision, does not by itself lead to the conclusion that it is not a medicament. The Court reaffirmed the test as categorically laid down in Shree Baidyanath, namely, that the burden of proof that a product is classifiable under a particular tariff head is on the revenue and must be discharged by proving that it is so understood by consumers of the product or in common parlance. See also Meghdoot v. Commisisoner of Central Excise : 2004 (174) ELT 14 (S.C.).”

In the case of Commissioner of C. Ex., Calcutta-IV vs. Pandit D.P. Sharma reported in 2003 (154) ELT 324 (SC), the question was whether ‘Himtaj Oil‘ is a Ayurvedic medicament or not classifiable under sub-heading 3003.30 or a ‘perfumed hair oil’ classifiable under sub-heading 3305.10. Even though reliance had been placed upon the authority of this Court in Shree Baidyanath Ayurved Bhavan’ case (supra), this Court negatived an argument that the product would not be considered to be a drug because it was not prescribed by a medical practitioner and was one which could be used for a long period of time. It was held that the test was to see what persons using the product understand it to be. On the basis of evidence produced by the manufacturer that the common man understood the product as a medicine it was held that the product was a medicament.

The basis of the show cause notices was the decision of this Court in Shree Baidyanath Ayurved Bhavan Ltd. vs. Collector of Central Excise, Indore reported in 1996 (9) SCC 402 and the tests allegedly laid down in that decision for determining whether a product should be classified under Chapter 33 or Chapter 30.

The two tests according to the show cause notice for determining whether a product was classifiable as a pharmaceutical product under Chapter 30 of the Central Excise Tariff were (1) Whether the products are being used daily and are sold without prescription by a medical practitioner; and (2) whether the products are available in General Store Department / Grocery shops. The department’s case in the show cause notice is that as these two tests were not fulfilled the product failed to come within the prescription of pharmaceutical products in Chapter 30.

DOCTRINE OF PART-PERFORMANCE

Doctrine of Part Performance is an equitable doctrine and it is incorporated to prevent fraud and from taking illegal advantage on account of non-registration of the document. In the old Madras case, Kurri Veera Reddi v Kurri Bapi Reddi (1906) 29 Mad 336 : 16 Mad LJ 395, the High Court held that the English doctrine of part-performance was not applicable in Indian law. In 1914, the Privy Council in Md Musa v Aghore Kumar Ganguly (1914) 42 Cal 801 : AIR 1914 PC 27, held that the doctrine of part performance was applicable in India on the principle of justice, equity, and good conscience.

Section 53-A of the Act, deals with definition of the doctrine and it says:

When any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:

Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.

llustration:

A contract to transfer his immovable property to B by way of sale and put B in possession of the property before a regular Sale-Deed is executed. The contract is said to be partly performed and if later on A refuses to execute regular document of sale and files a suit for eviction against B treating B as trespasser. Then B can resist A’s claim on the ground that the contract of transfer in his favour has partly been performed and that A should not be allowed to go back upon his own word.

Essential Requirements of section 53A of Transfer of property Act

 (1) There must be a contract to transfer an immovable property for consideration.

(2) The contract should be in writing and its terms can be ascertained with reasonable certainty.

(3) The transferee should have taken possession of the property in part performance of the contract or if he is already in possession, should have continued in possession in part performance of the contract, and should have done something in furtherance of the contract.

 (4) The transferee is ready and willing to perform his part of the contract.

Section 53 A creates benefits in favor of a person who has a prior agreement in his favor along with the possession of land mentioned in the agreement. The section creates a bar against the original owner or any person claiming title under him, for claiming any right of title or interest qua land mentioned in the agreement.

Therefore, if his possession is threatened, it is only the injunction suit that can be filed by the person claiming the benefit of the section. His remedy is not limited to taking defense in case a suit is filed against him. He can be a proper plaintiff also if he shows and proves the requirements of the section along with registration[6]. The protection provided by the section deals with the mixed questions of facts as well as law.

Scope of Doctrine of Part Performance

1. In plain reading, a transferor shall take ownership part in the execution of the contract for the property in question, aside from meeting the other provisions, using the shield provided for in this clause, and having done so to promote the contract.

2. Where the relevant contract does not comply with the provisions of a legal contract, the court cannot accept the plea referred to herein. For a transferor to use insurance in this clause, there must then be a legal contract.

3. The purpose of this provision is restricted only to the placing by the transferor, in connection with a property already owned by the transferor, of a bar on the protection of the rights.

4. The section grants no right on unregistered transfer to the transferor to assume custody of the transferor or any other right, it is only applicable to him as a protection.

5. For this clause to apply, the contract must be linked effectively to actions performed in support of the contract or to actions that may be unequivocally alluded to in that contract.

6. Where there is no transfer arrangement or land, the applicability issue of this provision does not arise.

7. The transferor must be the owner to attract the disposition of this section, a sales agreement should be concluded and the transferor’s possession should be by that agreement and the transferor has to do something else to support the agreement, and he has to be willing and willing to fulfill his part of the agreement.

The objective of Doctrine of Part Performance

1. The statute obliges both the transferor and the transferee to carry out a transfer. The transferee is generally required to pay the consideration under the terms of the contract and to perform the transfer act in a manner specified by Statute, the transferor is responsible for the transferee.

2. Section 53A centers on maintaining the transferee’s right to maintain ownership of the property if the transferee does not have liability because of the fault by the transferor in completing the convey instrument in the way stipulated by statute.

3. This section deals to prohibit the transferor or his successor from using a record that is not being registered provided the transferor performs the contractual portion and has taken care of any immovable property in connection with the conclusion of the contract.

4. To protect his property, the transferor has the right as a defense himself.

5. This section affects partial equality and partial incorporation in the Indian legal framework of the doctrine of partial results.

6. In the absence of a registered agreement, this provision provides for the procedural defense such that a person can retain ownership of his portion of the deal.

7. The primary purpose of this clause is to prohibit the recipient or parties claiming the title in violation of the interests of the other contracting party who has acted as a result of the agreement concluded.

8. This provision provides the accused with the ability to shield his possession from the transferor or others claiming his right under him, such as his heirs, assigned persons and legal agents.

9. This clause stipulates the transferor with a contractual bar that does not confer title to the transferor over the property in question. The transferred party cannot then bring an action to declare his rights to the land and to retrieve ownership on the grounds of the asserted title.

10. The transferee will still exercise his right as a shield, but he will not be allowed to exercise his right as a separate claim, either as complainants or defendant, only because he has satisfied the conditions specified in this clause, he does not assert the right under the present clause.

Section 53-A

Bombay High Court in Kamalabai Laxman Pathak v. Onkar Parsharam Patil, has given emphasis on the ingredients of the Section 53-A which are as follows:

  1. Contract for Transfer of immovable property:
    For the application of this section, the first condition is that there must be a contract and the contract must be transfer of immovable property for value.
    a) Written contract:
    The contract must be written. Section 53 –A is not applicable if the contract for transfer is oral. In V.R. Sudhakara Rao v. T.V. Kameswari case , it was held that the benefit of section 53-A is not available to a person who is in possession of property based on oral agreement of sale. Writing alone is not sufficient. The contract must also be duly executed. That is to say, it should be signed by the transferor or by any other person on his behalf.

    b) Valid Contract:
    It may be noted that Section 53-A is applicable only where contract for the transfer is valid in all respects. It must be an agreement enforceable by law under the Indian Contract Act, 1872.
  1. Immovable property:
    This section is applicable only in case of transfer of immovable property. It does not apply to an agreement for the transfer of movable property even though supported with consideration. The defense of Part Performance is not available in respect of possession of movables . 
  2. Transfer for consideration:
    The written contract must be for the transfer of an immovable property for consideration. The written contract on the basis of which the property has been possessed, must clearly suggest the transfer of property. If the document is ambiguous or confusing, this section cannot be made applicable. It is one of the necessary ingredients of section 53-A that the terms of written contract must be ascertainable with reasonable certainty.
  3. Possession in furtherance of Contract:
    The Transferee has taken possession or continues possession in part performance of the contract or, has done some act in furtherance of the contract
  4. Some Act in furtherance of the contract:
    Taking possession is not only the method of part performance of contract. If the transferee is already in possession of the property then, after the contract of transfer, he has to do some further act in part performance of the contract (Nathulal v. Phoolchand.
     
  5. Transferee is willing to perform his part of contract:
    Section 53-A is based on the principle of Equity. Equity says that one who seeks equity must do equity. Therefore, where a person claims protection of his possession over a land under section 53-A, his own conduct must be equitable and just. It is an essential condition for the applicability of this section that the transferee must be willing to perform his part of contract (Sardar Govindrao Mahadik and Anr. vs. Devi Sahai and Ors Govind AIR 1982 SC 989

Difference between the Doctrine of part performance followed in Common Law and Indian Law:

1. Under English Law, there is no need for a written agreement to attract the doctrine. An oral agreement can also invoke the doctrine of part performance. Whereas in Indian Law, the contract or the agreement has to be in writing.

2. In India, the protection provided under the doctrine can only be used to defend and it cannot be used as an independent remedy. Whereas in English Law, the doctrine can be used as both: a defense and an attack. Hence, it can be used to enforce a right of possession and not merely to protect it.

Real Estate Regulatory Authority Act 2016 (RERA)

Real Estate Regulatory Authority, well known by the name of RERA came into corporeality under the RERA Act 2016 (Real Estate Regulation & Development Act). The RERA Act was put forward with the central aim of protecting property buyers from lopsided and at the same time boosting up the real estate transactions. The official bill associated with the Act was passed by the Rajya Sabha in 2016 on 10th March. Although it came into effect from 1st May 2016. Initially, the bill embraced 52 sections followed by the introduction of 92 sections under the RERA Act.

The rest of the sections came into the workforce from the next financial year in May 2017. RERA is a new domain and for better understanding, you have a lot to explore. In this well-curated guide, we have covered every minute detail that orients around the Real Estate Act 2016 including the RERA meaning, RERA agent registration, benefits of RERA, RERA no, RERA rules for maintenance charges, RERA official website, and much more. Keep scrolling to know everything about the RERA Act, 2016.

Objective of the Act

  1. Enhance transparency and accountability in real estate and housing transactions.
  2. Promote growth through efficient project execution and standardization.
  3. Promote growth through efficient project execution and standardization.
  4. Boost domestic and foreign investment in the real estate sector.
  5. Enhance transparency and accountability in real estate and housing transactions.•Enhance transparency and accountability in real estate and housing transactions.
  6. Promote growth through efficient project execution and standardization.

Importance

RERA offers an array of benefits to agents, promoters, and homebuyers. It somehow turned the table by offering immense distinct benefits to the real estate domain. If you are looking for Why is RERA important then here are the foremost reasons to justify its importance: 

Security

As per the Real Estate Regulation and Development Act 2016, a notable amount that is 70 percent from the buyer as well as the investors will be held back within a discrete account. Further this amount is granted to the builders for specific purposes such as construction or other costs associated with land. Regardless of your position i.e., developer or constructor, you are permitted to access at max 10 percent of the mortgage cost in terms of advance payment. This amount is sanctioned prior to signing the final agreement. 

Transparency

Constructors are obliged to capitulate all original documents associated with the undertaken projects. However, the builders aren’t allowed to make any sort of changes within the agreed plans especially without the buyer’s consent.

Unbiasedness

RERA have enlightened the developers with the fact that they have to sell all properties thoroughly drew on the carpet area. Considering the property’s super built-up area is outdated, If the RERA approved project somehow gets delayed, the buyers are accredited to ask for the entire paid amount that was initially invested in the property. The buyer is entitled to get their investment back in terms of monthly investments. 

Quality

The constructor has to mandatorily rectify any sort of issue that the buyer faces within five years of the property purchase. Additionally, the builder has to rectify the issue in a limited time frame that is 30 days counting from the day when the complaint was made. 

Authorisation

A regulator isn’t allowed to advertise, construct, sell, or even book any plot without actually getting registered with the RERA regulator. After registering yourself as a regulator, every advertisement made for specific investments will be allotted with a unique number. It will be distinct for every project and will be generated by RERA.

FEATURES

  1. Establish the Real Estate Regulatory Authority (RERA) for regulation and promotion of the real estate sector.
  2. Ensure sale of plot, apartment of building or sale of real estate project, in an efficient and transparent manner
  3. Ensure protection the interest of consumers in the real estate sector
  4. Establish an adjudicating mechanism for speedy dispute redressal and also to establish the Appellate Tribunal to hear appeals from the decisions.
  5. Regulates transactions between buyers and promoters of residential real estate projects
  6. Residential real estate projects, with some exceptions, need to be registered with RERAs
  7. Promoters cannot book or offer projects for sale without registering them.
  8. Real estate agents dealing in these projects also need to register with RERAs
  9. Amount collected from buyers for a project must be maintained in a separate bank account and must only be used for construction of that project.
  10. Right to Legal Representation on behalf of client by Company Secretaries or chartered accountants or cost accountants or legal practitioners
  11. Imposes stringent penalty on promoter, real estate agent and also prescribes imprisonment.

Impact of RERA Act 2016

After the establishment of the Act, the sale deed registration of a RERA approved project can’t be put forward through the sub-registrar office. Initially you have to get Occupancy Certificates also called Completion RERA Certificates. Before its existence, these registrations used to take place without any cross checks.

It used to occur without Occupancy Certificates. No one was actually worried about the infused legal consequences. Even after the RERA Act implications, people aren’t restricting their inappropriate sale deed registrations. Here are certain impacts of the Real Estate Regulation and Development Act 2016:

  • Decreased number of launched projects as the involved parties will be more indulged in understanding the impact of the Regulation and Development Act. However, the genuine promoters will get huge benefits from this Act as they won’t have to face unbiased competition. 
  • Unauthentic builders will diminish because they will eventually fail to cope with the new RERA guidelines and won’t be able to sustain within the real estate market.
  • The thirty-two sections added within the Act aim to encourage the overall financial discipline of the real estate sector.
  • After the implementation of the RERA Act, the developers became bound to follow listed formalities to make any sort of change in the existing project. It may result in a short-term chaos, but the overall significance will be bet-fit for long run. It will help to generate buyers’ interest to invest more in the real estate domain. 

Advantages of RERA (Real Estate Development and Regulation Act)2016

  1. Increased FDI
  2. Customer management
  3. Timely completion of the project
  4. Project planning
  5. Transparency
  6. Reduction in litigation

RERA approval and its benefits

Some of the important RERA compliances are:

  • Informing allottees about any minor addition or alteration.
  • Consent of 2/3rd allottees about any other addition or alteration.
  • No launch or advertisement before registration with RERA
  • Consent of 2/3rd allottees for transferring majority rights to 3rd party.
  • Sharing information project plan, layout, government approvals, land title status, sub-contractors.
  • Increased assertion on the timely completion of projects and delivery to the consumer.
  • An increase in the quality of construction due to a defect liability period of five years.
  • Formation of RWA within specified time or 3 months after majority of units have been sold.

The most positive aspect of this Act is that it provides a unified legal regime for the purchase of flats; apartments, etc., and seeks to standardise the practice across the country. Below are certain key highlights of the Act:

Establishment of the regulatory authority: The absence of a proper regulator (like the Securities Exchange Board of India for the capital markets) in the real estate sector, was long felt. The Act establishes Real Estate Regulatory Authority in each state and union territory. Its functions include protection of the interests of the stakeholders, accumulating data at a designated repository and creating a robust grievance redressal system. To prevent time lags, the authority has been mandated to dispose applications within a maximum period of 60 days; and the same may be extended only if a reason is recorded for the delay. Further, the Real Estate Appellate Authority (REAT) shall be the appropriate forum for appeals.

Compulsory registration: According to the central act, every real estate project (where the total area to be developed exceeds 500 sq mtrs or more than 8 apartments is proposed to be developed in any phase), must be registered with its respective state’s RERA. Existing projects where the completion certificate (CC) or occupancy certificate (OC) has not been issued, are also required to comply with the registration requirements under the Act. While applying for registration, promoters are required to provide detailed information on the project e.g. land status, details of the promoter, approvals, schedule of completion, etc. Only when registration is completed and other approvals (construction related) are in place, can the project be marketed.

Reserve account: One of the primary reasons for delay of projects was that funds collected from one project, would invariably be diverted to fund new, different projects. To prevent such a diversion, promoters are now required to park 70% of all project receivables into a separate reserve account. The proceeds of such account can only be used towards land and construction expenses and will be required to be certified by a professional.

Continual disclosures by promoters: After the implementation of the Act, home buyers will be able to monitor the progress of the project on the RERA website since promoters will be required to make periodic submissions to the regulator regarding the progress of the project.

Title representation: Promoters are now required to make a positive warranty on his right title and interest on the land, which can be used later against him by the home buyer, should any title defect be discovered. Additionally, they are required to obtain insurance against the title and construction of the projects, proceeds of which shall go to the allottee upon execution of the agreement of sale.

Standardization of sale agreement: The Act prescribes a standard model sale agreement to be entered into between promoters and home buyers. Typically, promoters insert punitive clauses against home buyers which penalised them for any default while similar defaults by the promoter attracted negligible or no penalty. Such penal clauses could well be a thing of the past and home buyers can look forward to more balanced agreements in the future.

Penalty: To ensure that violation of the Act is not taken lightly, stiff monetary penalty (up to 10% of the project cost) and imprisonment has been prescribed against violators.

RERA Benefits

IndustryDeveloper  Buyer  Agents
Project efficiency and robust project delivery  Common and best practices  Significant buyers protection.Consolidation of sector (due to mandatory state registration)  
Standardization and quality  Increase efficiency  Quality products and timely delivery  Increased transparency  
Enhance confidence of investors  Consolidation of sector  Balanced agreements and treatment  Increased efficiency  
Attract higher investments and PE funding  Higher investment  Transparency – sale based on carpet area  Minimum litigation by adopting best practices  
Regulated EnvironmentIncrease in organized funding.Transparency – sale based on carpet area   
Governance and  transparency     
Case Laws:
1. Rakesh Kumar Gupta Vs. Ansal API (2017) The RERA Act aims to protect the allottees first and only then the builders and promoters. But there have been instances, where the builders and promoters have to be protected due to a multitude of reasons. The present case relates to an instance where the allottee delayed in the possession of the property by 45 days. This cost the promoter some expenses on maintenance which was huge.
2. Jitendra Jagdish Tulsiani vs. Lavasa Corporation Ltd (2018) The contention of the present case relates to a specific type of transfer of property-lease. RERA Act does not specifically mention what type of transfer comes under its jurisdiction. Therefore, the authorities themselves dismissed the above-mentioned petition. Ratio Decidendi: RERA Act is applicable with the transfer of immoveable property and the regulation of the same. Leasing is a type of transfer and it would come under the ambit of the RERA Act.

RERA impact real estate agents

Under the Real Estate (Regulation and Development) Act (RERA), real estate agents will need to register themselves, to be able to facilitate a transaction. The broker segment in India, is estimated to be a USD 4 billion industry, with an estimated 5,00,000 to 9,00,000 brokers. However, it has traditionally been unorganized and unregulated. “It will bring a lot of accountability in the industry and the ones who believe in professional and transparent business, will reap all the benefits. Now, the agents will have a much larger and responsible role to perform, as they will have to disclose all the appropriate information to the customer and even help them chose a RERA-compliant developer,” says Sam Chopra, founder and chairman of RE/MAX India. With RERA in force,  brokers cannot promise any amenities or services that are not mentioned in the documents. Moreover, they will have to provide all information and documents to the home buyers, at the time of booking. Consequently, RERA is likely to filter out the inexperienced, unprofessional, fly-by-night operators, as brokers not following the guidelines will face hefty penalty or jail or both.

Which projects can get RERA approval?

  • Commercial and residential projects including plotted development.
  • Projects measuring more than 500 sq mts or 8 units.
  • Projects without Completion Certificate, before commencement of the Act.
  • The project is only for the purpose of renovation / repair / re-development which does not involve re-allotment and marketing, advertising, selling or new allotment of any apartments, plot or building in the real estate project, will not come under RERA.
  • Each phase is to be treated as standalone real estate project requiring fresh registration.

How to register projects under RERA?

  • Authenticated copy of all approvals, commencement certificate, sanctioned plan, layout plan, specification, plan of development work, proposed facilities, Proforma allotment letter, agreement for sale and conveyance deed to be given when
  • Applying for project registration with RERA.
  • Mandatory registration of new and existing projects with RERA before launch.
  • Registration of agents/brokers with RERA.
  • Dispute resolution within 6 months at RERA and RERA appellate tribunals.
  • Separate registration of different phases of a single projects.
  • Developers to share details of projects launched in last 5 years with status and reason for delay with RERA.
  • Timely updating of RERA website.
  • Maximum 1 year extension in case of delay due to no fault of developer.
  • Annual audit of project accounts by a CA.
  • Conveyance deed for common area in favour of RWA.
  • Construction and land title insurance.
  • Project completion time period.

What information does a builder need to provide under RERA

  • Number, type and carpet area of apartments.
  • Consent from affected allottees for any major addition or alteration.
  • Quarterly updating of RERA website with details such as unsold inventory and pending approvals.
  • Project completion time frame.
  • No false statements or commitments in advertisement.
  • No arbitrary cancellation of units by promoter.

What happens if builder delays possession, as per RERA?

Under Section 18 of the RERA Act, if the possession of the property is delayed on the part of the promoter, a consumer can terminate the agreement and request for refund. The promoter must return the entire amount paid by the consumer with interest. The Section 18 also allows a consumer to continue with the project and claim compensation from the developer for every month of delay until the possession of property.

The rate of interest payable by the developer and the format of such complaint are specified under the RERA Rules that vary from state to state. Consumers can file a complaint against the developer in case of delay in possession under Section 31 of the Act. According to Section 31, any aggrieved person may file a complaint with the regulatory authority for violations of the said act. The complaint can be filed by home buyer as well as Association of Allottees.

How to file a complaint under RERA?

Digbijoy Bhowmik, head of policy, RICS, explains, “Complaints can be filed under Section 31 of the Real Estate (Regulation and Development) Act, 2016, either with the Real Estate Regulatory Authority or the adjudicating officer. Such complaints may be against promoters, allottees and/or real estate agents. Most state government rules, made appurtenant to the RERA, have laid out the procedure and form, in which such applications can be made.

Applicable penalties under RERA

For Buyers

OffencePenalty
Non-compliance with Real Estate Regulatory AuthorityThe seller is liable to pay penalty which is usually 5% of the project cost  
Non-compliance with – Appellate TribunalUp to one year of imprisonment or penalty that is 10% of the project cost or both are applicable in certain case

For Promoters

OffencePenalty
Non-registration10 percent of project cost as penalty 
Providing false informationPercent of project cost as penalty 
Violation of lawsThree years’ of imprisonment/ 10 percent of property cost as penalty , or even both for specific case scenarios 

For Agents

OffencePenalty
Non-registration of real estate projectsINR 10,000 on daily basis to 5 percent of the project cost
Non-compliance- RERADaily penalty which can raise to 5 percent of the project value
Non-compliance – Appellate TribunalOne year of imprisonment/ 10 percent of the project cost as penalty and both in certain cases

Can RERA overturn ‘forced consent’ agreements procured by builders for changing project plans?

Section 14 of the RERA prohibits developers from making any amendments to the sanctioned plan of the project, without theprior consent of the home buyers. As per Section 14, any alteration in the plans and specifications of an individual apartment, is permitted only with the prior written consent of the concerned home buyer. On the other hand, alterations in the layout of the entire project and the common areas of the building, cannot be effected unless the developer obtains the prior written consent of two-thirds of all the home buyers (or allottees) in the project. The Bombay High Court, in the case of Madhuvihar Cooperative Housing Society and others vs Jayantilal Investments and others, 2010 (6) Bom CR 517, had the opportunity to interpret Section 7 of the Maharashtra Ownership of Flats Act (MOFA), 1963, which is similar to Section 14 of the RERA. It held that the consent of a home buyer must be an ‘informed consent’, i.e., one which is freely given after the flat purchaser is placed on notice by complete and full disclosure of the project or scheme that the builder plans to implement. Further, the consent must be specific and relatable to a particular project or scheme of the developer which is intended. The bench further added that blanket or general consents, obtained in advance by developers, particularly during signing of agreements, were legally invalid. As Section 7 of the MOFA is analogous to Section 14 of the RERA, the ruling of the Madhuvihar Cooperative Housing Society case will hold good for all cases that come before the Real Estate Regulatory Authority and the Real Estate Appellate Tribunal.

Rights and duties of Allottees:

Rights

Right to obtain information about the project		 Duties

Duty to make payment as agreed.
Right to know the stage-wise time schedule of completion of the projectDuty to pay interest in case of late payment
Right to claim possession of property as declared by the promoterDuty to participate towards the formation of an association or society or cooperative society of the allottees .
Right to refund and compensation if promoter fails to give the possession.Duty to take physical possession of property within· a period of two months of the occupancy certificate

Drawbacks and Apprehensions:

1). Who will ensure how much is 70% of the total project cost? Also, the state government can alter this amount to less than 70%.

2). The Bill mandates that 70% of the amount collected from buyers of a project be used only for construction of that project. In certain cases, the cost of construction could be less than 70% and the cost of land more than 30% of the total amount collected.  This implies that part of the funds collected could remain unutilized, necessitating some financing from other sources. This could raise the project cost.

3). Builders argue that it will be difficult to sell units on the basis of carpet area in an under-construction property in which many units have been already sold on the basis of super built-up area.

4). Developers say that the main cause of delay is slow approvals from government agencies.

5). Under the Act, if the registration is revoked by the regulatory authority, who will complete the construction?

6). A few consumer activists believe that the real estate regulator may not be effective in the matter of handling complaints. The complaints are already being handled by consumer courts. So they say that there is nothing new. Also, the consumer courts were not effective in the redressal of complaints. They express the same reservations about the regulatory authority also.

7).  Does not address important issues like the lengthy process for project approvals, lack of clear land titles, the prevalence of black money etc

8). Since state-level governance is very uneven, this will work patchily. Some states will set up efficient Tribunals and Regulatory Boards; others will not.

9). Many politicians have interests in real estate. That could work both for, and against the concepts of the new Act. Some smart and not-so-crooked politicians will back the new act and use it to accelerate activity. Others will try to hold up the new legislation or subvert it.

Kinds of Marriage (Muslim Law)

MEANING

Muslim Marriage or Nikah is held as a legal civil contract between a man and a woman carried out on the basis of ijab-o-qabool. Ijab is a proposal from one party and Qubool is acceptance from other.  According to Sharia law, this contract is considered as integral to a religiously valid Islamic marriage that legalises sexual relation between man and woman to produce children. The contract is never permanent and can be broken at the will of husband and wife.

1.Sahih (Valid )

 Firstly, there is “Sahih” marriage which is fully valid and effective. Under such a marriage, sexual intercourse is lawful and the woman is entitled to both dower and maintenance.

Legal Effect of a Valid Marriage

i)                The co habitation of the parties becomes lawful and not immoral;

ii)              The children born to a lawfully wedded couple are legitimate and can inherit accordingly;

iii)            For the couple itself, mutual rights of inheritance arise;

iv)             The wife can claim dower and has a right to maintenance and simultaneously the obligation to observe Iddat is bestowed upon her;

v)  Prohibited relations are created due to the marriage;

vi)             The legal identity or status of a Muslim woman does not blend in with her husband’s identity after marriage; and

vii)           The parties have rights to regulate the movements of each other but they can not refrain each other from maintaining a relationship with their respective families or visits to then.

2.Batil Secondly, there is a “Batil” (void) marriage. 

Under such a marriage, no rights or obligations exist between the parties. Parties would be guilty of zina, save where the parties were unaware of the fact that the marriage was void. If a marriage is affected by a permanent impediment, then the marriage is declared void. The permanent impediments arise:

• Under the bar arising from relationship of blood, a man may not marry any ascendant or descendant, any descendant of his father or mother, or the immediate child of any ascendant, nor may a woman marry any corresponding male. Under the bar of fosterage, two persons who were suckled by the same foster-mother are permanently barred from marrying each other.

• The bar of affinity arises from marriage, so a man may not marry the former wife of any ascendant or descendant, or any ascendant or descendant of a former wife with whom he actually had consummated his marriage.

• Under the bar of polyandry, i.e. when a woman contracts a second marriage during the subsistence of her first marriage.

Legal Effects of a Void Marriage

No mutual rights or obligations are created for the parties in this union. The children born to such a couple are deemed illegitimate and the wife has no rights to dower or maintenance. The parties can actually marry any one they wish for this marriage does not exist in law or in fact.

Munsh v, Mst. Alam Bibii AIR 1932 Lah. 280 the court observed that due to non-adherence of a condition there is a permanent or perpetual marriage, which is void marriage.

Spouses are free to separate from each other at any time without obtaining a divorce or the wife may contact another marriage lawfully. Some of the essential social and legal implications of void marriage are:

  • The marriage is void from the very first day of the marriage i.e. void ab initio even if the marriage is consummated.
  • Right to maintenance after divorce is lost in case of a void marriage.
  • The children born out of this marriage do not have a right to inheritance.

3.Fasid – Thirdly, there is a “Fasid” (irregular) marriage,

 which is middle way out. This is also no marriage, but can be regularized in certain conditions. Under such a marriage, no zina is committed and a dower is payable. An irregular marriage arises from temporary impediments, which occur when:

• There is an absence of witnesses.

• A woman who is already married.

• A woman who is still observing the idda period.

• A woman whom he has triply repudiated, unless she has married another man and that marriage has been terminated.

• A man may not marry at the same time two sisters or a mother and her daughter.

• A man who already has four wives may not validly marry a fifth.

• A Muslim man may contract marriage with a non-Muslim woman provided she is a khitabiyah.

• A Muslim woman, on the other hand, may only validly contract marriage with a Muslim man.

• According to the non-Hanafi schools of Sunni law, a marriage concluded by a woman herself without a guardian is also invalid as is a marriage concluded by a person performing haj.

• According to Maliki law, a person who is in a state of death sickness is prohibited from marriage.

Legal Effects of an irregular Marriage

The cohabitation is lawful and the children are legitimate and can inherit the properties of their parents. Mutual rights of inheritance do not arise. After consummation only, can the wife claim dower. The wife does not have to observe Iddat if the marriage is not consummated.

In Ata Mohammed. Saiqul Bibi, 1910 8 ALJ 953, the court observed that when a marriage is temporarilyimpedimental and not completely restricted it is considered as merely irregular of fasid and not void marriage. Because this marriage has several aspects involved and various points of view. The social and legal implication of irregular marriage depends upon that the marriage is consummated or not.

Muta marriage

Muta which refers to as pleasure ,is a temporary marriage which happens for a fixed period of time ,this kind of marriage was prevalent in Arabia and such a marriage is not recognized by any school of Muslim law in India ,it is only recognized by the Itha Asar Shia School ,however the practice and institution of Muta marriage is completely obsolete in India .

The Shia Law recognizes two kinds of marriage, namely

 (1) permanent, and

 (2) muta (literally means enjoyment or use) or temporary. The fundamental difference between the two is that in the former the term is not specified while in the later it is. Sunnis do not recognize such marriage. ‘Muta Marriage is an ancient Arabian custom.

A shia male may contract a muta marriage with kitabia woman (professing Muslim, Christian or

Jewish religion) or even with a woman who is fire-worshiper but not with a woman following

any other religion. But a shia woman may not contract a muta marriage with a non-Muslim.

A Shia male can contract any number of muta marriages. All the requisite formalities of

marriage, such as of offer and acceptance, have to be observed in the muta marriage. It is

essential to the validity of muta marriage that:-

(1) the period of cohabitation should be fixed ( a day, a month, year , years) and that

The essentials of Muta marriage are:- 

(1) The period of cohabitation should be fixed. 

(2) Dower should be fixed.

 (3) If dower specified, term not specified, it could amount to permanent or regular marriage. 

(4) If the term fixed dower is not specified, it amounts to void marriage.

Effects of Muta marriage : 

1. Parties have no right to mutual inheritance 

2. Muta wife is not entitled for maintenance – But if in their contract it is so mentioned then husband is bound to pay or she may file Petition under Sec.125 of Cr.P.C. 

3. If marriage is not consummated, the wife is entitled for half of the dower. Also if the wife leaves husband before the contracted period, she is still entitled for a proportionate dower. 

4. When marriage is consummated, the wife is required to undergo an idda of three months 

5. In muta, husband has the right to refuse procreation Children of muta treated as the legitimate and inherit property of mother only.

 6. Children of muta are treated as the legitimate and inherited property of the mother only.
7. Muta comes to an end after expiry of term, if the husband wants to end it early then by mutual consent , he can do so by making a gift of the remaining term.

Conclusion

Marriage under Muslim law is considered a devotional act. The main purpose of marriage is to create a family which is considered a fundamental unit of society. The Prophet Muhammad has also said Marriage is my tradition and anyone who does not want to marry is not from amongst me. Also, Muslim law treats marriage as a civil contract, all the legal obligations of a contract like a proposal, acceptance, free consent and consideration are followed for a valid marriage. Marriage is classified based on its validity.

Bureau of Indian Standards (BIS)

The Act was originally enacted in 1986 and the BIS came into existence in December 1986. A new act (to replace the BIS Act of 1986) was introduced in the Lok Sabha in 2015, which was subsequently passed by both houses of the Parliament. The new act came into force in 2017.

Bureau of Indian Standards (hereinafter referred to as ‘BIS’) is a statutory body established under the Bureau of Indian Standards Act, 2016 (hereinafter referred to as the ‘Act’). BIS prescribes the standards for covering goods and systems under the standardization regime. Under the Act, BIS has been identified as the ‘National Standards Body of India’ and is regulated under the Ministry of Consumer Affairs, Food & Public Distribution, and Government of India.

Features 

The Act establishes a Bureau for the purpose of standardization, marking and certification of articles and processes.  

  • The Act allows the union government to make it compulsory for certain notified goods, processes, articles, etc. to carry the standard mark in the public interest, safety of the environment, national security or to prevent unfair trade practices.
  • The BIS Act also allows many types of simplified conformity assessment schemes and this includes self-declaration of conformity against a standard which will offer simplified options to manufacturers to adhere to the standards and get a certificate of conformity. 
  • According to the Act, the central government has the power to appoint any agency or authority (apart from the BIS) to verify the conformity of product & services and issue the conformity certificates.
  • Additionally, there is a provision in the Act for the recall or repair for products that bear the Standard Mark but do not conform to the required Indian standard.
  • The Act has identified new areas for standardisation. These include:
    • Medical devices
    • Alternate fuels
    • Smart cities
    • E-mobility
    • New and renewable energy
    • Digital technologies (Artificial Intelligence, Industry 4.0, Blockchain, etc.)
  • The BIS (Hallmarking) Regulations, 2018 makes the hallmarking of precious metals jewellery and artefacts such as gold and silver mandatory.
  • The penalty for improper use of the Indian standard mark will be a fine of up to Rs. 5 lakh.
  • The Act also prescribes penalties for the following points:
  • The improper use of the standard mark by testing and marking centres
  • Manufacturing or selling goods & articles that do not carry a standard mark and have been mandated to do so, etc.

Objectives

To harmonize development of standardization, labeling, and quality certification of items.

To give a push to standardisation and quality control in order to promote industry growth and develop while also meeting customer requirements.

To organise technical committees of specialists for the goal of developing such standards.

Functions

BIS through its core activities of standardization and conformity assessment, has been benefiting the economy by providing safe and reliable and quality goods; minimizing health hazards to consumers; protecting the environment, promoting exports and imports substitute; controlling proliferation of varieties etc. The standards and certification scheme of BIS apart from benefitting the consumers and industry also support various public policies especially in areas of product safety, consumer protection, food safety, environment protection, building and construction, etc.

BIS carries out various activities like that of standards formulation, product certification, hallmarking, laboratory services, training services, etc. However, the primary and most recognized objective of BIS is to formulate and prescribe the standards for products for their certification. BIS also ensures the harmonious development of the activities of standardization, marking and quality certification of goods.

schemes of certification

BIS Compulsory Registration Scheme (CRS)

The Ministry of Electronics and Information Technology (MeitY) notified the Compulsory Registration Scheme (CRS) in 2012. It passed the ‘Electronics and Information Technology Goods (Requirement for Compulsory Registration) Order, 2012’ for 15 categories of electronics items. However, it added more electronic and information technology goods under the CRS subsequently.

Under CRS, the manufacturers of the products listed under the CRS have to obtain the BIS certification for those products mandatorily. As per the 2012 order passed by MeitY, a person cannot manufacture, distribute, or store goods for sale or import that do not conform to the Indian Standards specified in the order and bear the standard mark with a BIS unique registration number.

The BIS grants the licence to the manufacturers of the electronic products to use or apply the standard mark with a unique R-number. The manufacturers can obtain BIS certification under the CRS through registration based on self-declaration of conformity for each product by filing Form-I under smart registration.

ISI Mark Scheme Registration for Domestic Manufacturers

The manufacturers of products that come under the compulsory BIS certification (Scheme-I) have to register through the normal procedure. However, certain products that require compulsory certification are also included in the list of products that come under simplified registration. When the compulsory BIS certification products are listed under the products eligible for simplified registration, the manufacturers of such products should register them under the simplified procedure and not through the normal procedure. 

Under the normal BIS certification procedure, the manufacturer of the compulsory BIS certification product has to submit the BIS registration application to the authorised officer of the jurisdiction where the manufacturing unit is located. The manufacturer of the products must submit Form V under Scheme-I (BIS registration application) along with the required documents and requisite fees. 

The BIS officers will conduct a preliminary factory evaluation after receiving the BIS certification application. The BIS officers will collect samples of the products, test them and obtain an independent testing report. When the products meet the confirmed quality standards, the BIS certification/license is provided. Under this procedure, the BIS license is granted within 4-6 months after submitting the registration application.

Product Certification Scheme – Applicable for tangible products; with some products classified under compulsory certification.

The BIS introduced the simplified procedure to give pace to the process of granting the BIS license. The manufacturers of the products listed under the simplified procedure must mandatorily apply for BIS certification under the simplified procedure. The BIS license is granted within 30 days of submitting the BIS certification application under this simplified procedure.

The manufacturer must submit the BIS registration application, the required documents, self-evaluation reports and test reports of product samples obtained from the approved lab to the respective BIS officer. When the test report meets the standard requirements, the BIS officer will verify the factory and grant BIS certification within 30 days of submitting the BIS application.

The simplified procedure is applicable for grant of BIS license of ‘All India First License’ cases and all the products listed under the simplified procedure except in the following circumstances:

  • Products like valves, cylinders, cement, etc., where it is necessary to obtain approval from another statutory authority
  • All those products where BIS license is issued on the basis of factory testing

System Certification Scheme – Applicable for systems/ process

Foreign Manufacturers Certification Scheme – Applicable for foreign manufacturers who are engaged in the sale of their products in India. The BIS grants the specially designed ISI mark for overseas applicants or foreign manufacturers under the Foreign Manufacturers Certification Scheme (FMCS) within six months. They can obtain BIS certification for products under the Compulsory Registration Scheme (CRS) and compulsory BIS certification scheme (Scheme-I).

The BIS introduced the FMCS in 2000 to enable overseas applicants or foreign manufacturers to obtain and use the standard ISI mark on their products. The foreign manufacturers have to set up a branch office in India with the required permissions and nominate an agent in India.

The foreign applicant must submit the BIS registration application form with the BIS in the prescribed format, the requisite documents and fees. The BIS will conduct a preliminary inspection of the product at the applicant’s manufacturing and testing units and collect samples for independent testing. 

When the BIS is satisfied that the products meet the standard requirements, it shall grant the BIS certification. When the BIS certification is granted to the foreign manufacturer or overseas applicants, they should pay an annual minimum marking fee and annual license fee.

Hallmarking – Applicable for articles made from precious metals like gold and silver

ECO Mark Scheme – Applicable for products affecting or related to the environment. The BIS also provides certification to environmentally friendly products under the ECO mark scheme. Under this scheme, BIS categorises all environmental products that conform to the basic requirements under Indian Standards. The BIS grants an ‘ECO’ logo along with an ‘ISI Mark’ for the products. 

The logo and mark indicate that the product meets certain environmental criteria and the relevant Indian Standards quality requirements. A single mark is granted to the products, which will be the combination of the ISI mark and the ECO logo. 

The procedure to get the BIS license under the ECO mark scheme is similar to obtaining a BIS license for domestic manufacturers under the normal or simplified registration procedure. When a manufacturer already has a valid BIS certification mark for a product and wants to get a new product covered under the ECO mark scheme, the manufacturer has to make a specific request to the BIS. The BIS will take the required steps for grant of BIS license under the ECO mark scheme.

Obtaining the BIS registration is essentially voluntary in nature. However, BIS requires compulsory certification for products which impact the health and safety of consumers. Mandatory certification scheme is bifurcated into ISI (Indian Standards Institute) Mark Scheme and Compulsory Certification Scheme (collectively referred to as ‘Standard Mark’). ISI Mark Scheme is applicable for products such as cement, electrical appliances, baby food, etc. and Compulsory Certification is required mostly for IT/ electronic products. For procurement of the BIS certificate, the manufacturer has to ensure that the product is in compliance with the ‘Indian Standard’.

‘Indian Standard’ has been defined under the Act as the standard set and published by the BIS, with regards to any article or process which is indicative of the quality and specification of such article or process and also includes: (i) Any standard recognized by the BIS and (ii) Any standard established and published, or recognized, by the ISI and which is in force immediately before the date of establishment of BIS.

Role of BIS

The Bureau of Indian Standards Act 2016 further proposes to increase the scope of BIS by allowing theUnion government to make the standard mark mandatory for certain specified products, items, and processes.

It also enables for a variety of compliance assessment methodologies that are in line with best world w standards.

According to the Bureau of Indian Standards Act 2016 provisions, the Union Government has made step increase the ease of doing business. It will also allow any other agency with the requisite certification to conduct conformity assessments against Indian standards. The law would also allow for self-certification and market monitoring

BIS- Offences, Punishment and Enforcement Activity

The Act empowers BIS to pass orders granting, suspending or rejecting a license. Any violation of the provisions of the Act and the non-compliance with the standards set by BIS is punishable with either imprisonment for a period of one year or with a fine extending up to INR 50,000.

BIS also carries out enforcement activity to curb the use of Standard Mark or its imitation by unscrupulous traders and manufacturers not holding a valid BIS license. The objective behind these enforcement activities is to protect consumers from being misled about quality of products that are marked with the BIS Standard Mark. Enforcement raids, which include search and seizure operations are carried out against traders and manufacturers on the basis of intelligence collected regarding misuse of the Standard Mark and where required, prosecution cases are filed in the court of law.

BIS Registration Procedure

The BIS registration procedure generally involves the licensing process and surveillance process. The following steps are involved under the licensing process:

  • The manufacturers submit the BIS registration application 
  • The BIS officer will visit the factory for a preliminary inspection
  • After the inspection, the product samples will be tested 
  • After completion of the evaluation, the BIS officer will derive the final result 

After the inspection process, the inspecting officer will conduct the surveillance process to conduct a complete survey of the factory. The following steps are involved under the surveillance process:

  • The inspecting authority will visit the factory to testify the test results
  • The inspecting officer will send the samples to the independent labs
  • The test report will give feedback or brief the complaint on the investigation
  • The performance review report will be prepared
  • Once the report is reviewed, the BIS license is granted

Documents Required for BIS Certification

The documents vary depending on the type of BIS registration scheme. However, the general required documents that a manufacturer needs to submit to the BIS for obtaining BIS certification are as follows:

  • Name and address proof of office and factory
  • Document showing the establishment of the manufacturing unit such as Incorporation Certificate or Registration Certificate or Memorandum of Association, etc.
  • MSME/SSI certificate, if applicable
  • Manufacturing process flow covering all processes of manufacture (from raw material to finished product stage)
  • Manufacturing machinery list along with the machinery details
  • Details of outsourcing of manufacturing operation, if applicable
  • A detailed list of testing facilities and testing equipment list
  • Copies of valid calibration certificates of testing equipment 
  • Third-party laboratory test report as per Indian Standards, if applicable
  • Layout plan of the factory premises and location plan of the factory
  • In-house or independent test report, if applicable
  • In case the application is signed by the authorised signatory, the authorisation letter from CEO in the authorised signatory name
  • In case of a foreign manufacturer or overseas applicant, nomination details of Indian agent and nomination form

Validity of BIS Certification

The BIS certification issued by the BIS is valid for two years. The manufacturers can renew the BIS certification when there is no change in the concerned products and prescribed standards. The renewed BIS certificate will be valid for at least one year and a maximum of five years.

The renewal of the BIS certificate is subject to an annual advance minimum marking fee and license fee. However, if the renewal application of the BIS certification is filed after the expiry period of the certificate, the applicant needs to pay a late fee of Rs.5000.

Benefits of BIS Certification

The BIS registration provides the following benefits:

  • Ensures quality standards as BIS registration products are bound to follow a certain standard while manufacturing the goods
  • Gives authenticity to BIS certified products as they deliver high-quality performance and reliability
  • BIS certified products minimise environmental risks as BIS has prohibited the usage of certain chemicals and materials under its prescribed norms
  • BIS registration is granted after testing the samples of the products in BIS set-up laboratories, ensuring quality inspection and high-quality of products

Conclusion

BIS is responsible for the quality check of various products and services across 14 different sectors. The quality certification of these products safeguard people from several health and safety hazards. In the era of globalization and the growing importance of ensuring conformity with standards in global trade, BIS has huge significance and responsibility. The conformity assessment procedures have become increasingly important in the modern day and hence, BIS plays a critical role in strengthening Indian trade and exports. The Product Certification Scheme is regarded as one of the biggest around the world, with around 26500 licensees covering no less than 900 products.BIS Certification is fundamental to the use of the mark on their products.

Doctrine of Harmonious Construction

 Whenever there is a conflict between two or more Statutes or between two or more parts or provisions of a Statute, then the Statute has to be interpreted upon harmonious construction. It signifies that in case of inconsistencies, proper harmonization is to be done between the conflicting parts so that one part does not defeat the purpose of another.’ The Doctrine of Harmonious Construction is considered the thumb rule to the Rule of Interpretation of Statutes.

ORIGIN OF HARMONIOUS CONSTRUCTION

The Doctrine of Harmonious Construction was established as a result of court interpretations of a variety of cases. The doctrine’s creation can be traced all the way back to the first amendment to the Indian Constitution, with the landmark judgment of Shankari Prasad v. Union of India. The disagreement between Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy) of the Indian Constitution was the subject of the case.

The court used the Harmonious Construction rule to hold that fundamental rights, which are rights granted against the state, may be revoked under certain circumstances and modified by Parliament to bring them into compliance with constitutional provisions. Both were given preference, and it was determined that FRs and DPSPs are just two sides of the same coin that must be worked together for the greater good.

This theory was developed historically through the law of conciliation, which was first proposed in the case of C.P and Berar Act. The court used this rule of interpretation to prevent any overlap or confusion between entries 24 and 25 of the State list, and to read them in a logical order by deciding the scope of the subjects in question

The objective of harmonious construction

  • The objective of harmonious construction is to avoid any confrontation between two enacting provisions of a statute and to construe the provisions in such a way that they harmonize. The basis of this rule is that the Legislature never envisages to provide two conflicting provisions in a statute, for the reason that it amounts to self-contradiction.
  • The real legislative intent, that we try to discover in the process of interpretation cannot be to provide for something in one provision and deny the same in subsequent one. Hence, even if an inconsistency is found, the same should be considered to be unintentional and as such, is required to be cured by way of harmonious construction.
  • The objective of harmonious construction is to avoid confrontation between two enacting provisions of a statute and to construe the provisions in such a way that they harmonize. The normal presumption is that what the Parliament has given by one hand is not sought to be taken away from another. The origin Of the Doctrine Of Harmonious Construction dates back to the landmark Judgment of Sri Shankari Prasad Singh Deo v. Union of India, 1951. The disagreement between Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy) of the Constitution of India was the subject of the case.
  • The Court used the Harmonious Construction Rule to hold that Fundamental Rights, which are rights granted against the State, may be revoked under certain circumstances and modified by Parliament to bring them into compliance with constitutional provisions.
  • In the case of Venkataramana Devaru v. the State of Mysore 1958 SCR 895 the Supreme Court, by applying the doctrine of harmonious construction, resolved the conflict between Articles 25(2)(b) and 26(b) of the Constitution. It held that every religious denomination or section had the right to manage its own religious affairs.

When can it apply

The doctrine of harmonious construction is applied when the court is unable to reconcile the differences between opposing provisions. The courts must interpret them in such a manner that both the opposing provisions are given effect as much as possible.

The Courts have formulated some measures for the improved applicability of the said doctrine after reviewing numerous case laws.

  1. Giving maximum force to both clauses thus reducing their inconsistency and/or dispute.
  2. Both clauses that are inherently contradictory or repugnant to one another must be read as a whole, and the entire enactment must be considered.
  3. Choose the one with the broader reach of the two contrasting clauses.
  4. Compare the broad and narrow provisions, and then try to analyze the broad law to see if there are any other consequences. No further investigation is needed if the result is as fair as harmonizing both clauses and giving them full force separately. One thing to keep in mind is that the legislature, when enacting the provisions, was well aware of the situation that they were attempting to address, and thus all provisions adopted must be given full effect on scope.
  5. A non-obstante clause must be used when one provision of an Act strips away powers conferred by another Act.
  6. It is critical that the Court determine the degree to which the legislature wanted to grant one clause overriding authority over another. In Eastbourne Corporation v. Fortes Ltd (1959) 2 All ER 102 CA, it was decided that if two opposing sessions could not be reconciled, the last section would take precedence. This isn’t a universal law, though.

Principles of rule of Harmonious construction

In the land mark case of CIT v. Hindustan Bulk Carriers (2003) the supreme court laid down five principles of rule of harmonious construction:

  1. the courts must avoid a head-on clash of seemingly contradicting provisions and they must construe the contradictory provisions.
  2. the provision of one section cannot be used to defeat the provision contained in another unless the court, despite all its efforts, is unable to find a way to reconcile their differences
  3. when it is impossible to completely reconcile the differences in contradictory provisions, the courts must interpret them in such a way so that effect is given both the provisions as much as possible.
  4. courts must also keep in mind that interpretation that reduces one provision to a useless number or dead is not harmonious construction.
  5. to harmonize is not to destroy any statutory provision or to render it fruitless.

Maxims on which the rule of harmonious construction is expressed

Generalia specialibus non derogant
The general rule to be followed in case of conflict between two statutes is that the latter abrogates the earlier one. In other words, a prior special law would yield to later general law if either of the two following conditions is satisfied:

  1. the two are inconsistent with each other.
  2. if either of these two conditions is fulfilled, the later law, even though general would prevail.

Generalibus specialia derogant

This maxim means that special things derogate from general things. So special provisions in a statute control the general provisions. In other words, general provisions have no applications in the matter that are governed by special provisions. It can therefore be said that a special provision on a matter excludes the application of general provisions and always overrides the general provisions but this overriding effect is restricted to the extent of inconsistency between them.

CASE LAWS:

SIRSILK LTD. VS. GOVT. OF ANDHRA PRADESH AIR 1964 SC 160,

An intriguing question involving a conflict between two equally mandatory provisions of the Industrial Disputes Act, 1947, namely ss 17(1) and 18(1), is a good example of the significance of the concept that any attempt should be made to give effect to all of an act’s provisions by harmonizing every apparent conflict between two or more of them. Section 17(1) of the Act requires the government to publish any award of a Labour Tribunal within thirty days of receipt, and section 17(2) of the Act states that the award becomes final upon publication. A contract between an employer and employees is binding on the parties to the arrangement, according to Section 18(1) of the Act. In a situation where a settlement was reached after the Government received a Labour Tribunal award but before it was released, the issue was whether the Government was indeed obliged to report the award under section 17(1). The Supreme Court held that the only way to address the conflict was to hold that the industrial dispute ends with the settlement, which becomes valid from the date of signing, and the award becomes infructuous, and the Government cannot publish it.

COMMISSIONER OF SALES TAX, MP VS. RADHA KRISHNA 1979 AIR 1588, 1979 SCC (2) 249

The Commissioner sanctioned criminal prosecution of the respondent partners in this case under section 46 (1) c of the Madhya Pradesh General Sales Tax Act, 1958, after the assessee failed to pay the sales tax despite repeated demands. The respondent argued that the Act had two separate sections, namely section 22 (4 – A) and section 46 (1) c, in which two different procedures for realizing the amount due were prescribed, but that there was no provision of law that could say which provision should be enforced in which case. The provision prescribed u/s 46 (1) c, according to the Supreme Court, was more serious. The inference drawn from the harmonious construction of these two clauses was that the Commissioner had judicial discretion in deciding which procedure to follow in which case. The court has the authority to interfere if the Commissioner fails to act judicially. However, in this situation, the Commissioner was right in deciding that the more severe procedure under section 46 (1) c needed to be used because the assesse company had failed to pay sales tax despite the sales tax officer’s repeated demands.

Conclusion

The Doctrine of Harmonious Construction provisions states that if the application of the doctrine is fundamentally inconsistent or repugnant to each other must be read entirely, and the complete enactment must be considered. The provision with a broader reach of the two contradicting provisions should be considered. It aids in the clarification of complex problems and facilitates the delivery of decisions. As a result, the value of the law of harmonious construction is recognized and felt by the judiciary, just as it is by many other laws of application of statutes. ‘The administration of justice is the firmest foundation of the nation,’ George Washington rightly said. As a result, in accordance with this philosophy, the judiciary should correctly interpret statutes and intelligently enforce the rules for interpreting statutes in order to provide prompt justice to the people of the country.

FSSAI

The Food Safety and Standards Authority of India (FSSAI)

On the 23rd of August, 2006 the government of India passed the FSS Act or the food safety and standards act which changed the way food safety and food handling practices are being monitored in India.

The Act empowered by the government of India has been divided into 12 Chapters which discuss in detail the impact, regulations, authorities that the Act carries with it to empower the safety of food products. The Food Safety and Standards Authority of India (FSSAI) was set up in 2008 for the proper monitoring of food hygiene and quality in India. It was functional from 2011 and ever since has been responsible for managing food safety in our country.  The FSSAI has its headquarters at New Delhi. The authority also has 6 regional offices located in Delhi, Guwahati, Mumbai, Kolkata, Cochin, and Chennai. The organisation has been set up as per the FSS Act 2006, until which different acts and laws were being administered under the various ministries of Government. 

The Act basically covers all kinds of food that is consumed by human beings. Most food items including unprocessed/semi-processed/processed foods are covered under this act. It also includes genetically engineered foods, all kinds of substances and water that is used in the preparation of food. 

Packaged juices, drinking water, infant food, alcohol-based drinks, chewing gums, and all other primary foods are covered by the FSSAI Act.

Here, it is important to mention that, the Act considers live animals or products of agriculture, horticulture or animal husbandry as food only when it has already passed on from the hands of a farmer. 

Functions of FSSAI

Following functions are performed by the Food Safety and Standards Authority of India:

  • Setting Rules and Guidelines – FSSAI sets up rules and guidelines which need to be followed by all food manufacturing companies, keeping into consideration hygiene and food safety
  • Granting License – To pursue any food related business, the owner needs to get a certificate and license with the permission of FSSAI
  • Test the Standard of Food – the standard and quality of food manufactured by all companies registered under FSSAI, is done by the organisation themselves
  • Regular Audits – Proper inspection is done for food-producing and manufacturing companies to ensure the standards are at par with the guidelines
  • Spreading Food Safety Awareness – It is the responsibility of FSSAI to spread awareness and inform the citizens about the importance of safe and hygienic food consumption
  • Maintain Records and Data – FSSAI also has the responsibility to maintain proper records and data of all the registered organisations. Any violation of rules prescribed by FSSAI can lead to the termination of the license
  • Keeping the Government Updated – Any food safety-related threat must be informed to the Government authorities for further action. Also, assist them in framing food standard policies

Challenges for FSSAI

There are certain challenges which are to be overcome by FSSAI:

  • Proper laboratories for testing the quality of food need to be organised by the Organisation
  • Arranging qualified manpower to test and approve the standards of food being manufactured
  • Re-evaluating the regulations and terms as per international standards
  • Gaining funds to get advanced technologies 
  • Ensuring proper licensing of every food manufacturing individual or business

Once the Government of India and FSSAI overcome these shortcomings, the organisation is capable of regulating and maintaining the food safety standards in all parts of the country. 

Applicability:

The Food Safety and Standards Act is applicable to all persons who are manufacturing, producing, selling or handling food that is meant for human consumption. 

The Food Safety and Standards Act does not discriminate between a small hawker or a huge Food Business Operator and makes it mandatory for everyone handling food to keep it safe and fit for human consumption. The Act does not categorize individual sellers or small business and universally names everyone as Food Business Operator. Therefore, this Act is applicable to every person that is in the food business. 

The above statements, however, has an exception. As mentioned earlier, the Act is not applicable to farmers even though they are producers of food. Agricultural produce, animal husbandry, etc. are not covered directly under the scope of this Act and thus excludes farmers.  The Act comes into play only when the product leaves the hands of the farmers and reaches the next person. 

  1. The Food Safety and Standards Act has a few regulations mentioned which need to be followed by Food Business Operators  
  2. The regulations under the act basically allow or prohibit the inclusion of substances in food that is meant for human consumption
  3. The Food Safety and Standards Act expressly prohibits the inclusion of harmful substances such as insecticides in food
  4. The Act also mentions clearly that no article of food shall contain any contaminant, naturally occurring toxic substances or toxins, hormones, heavy metals, insecticide and pesticide residues, veterinary drug residues, antibiotic residues, solvent residues, pharmacologically active substances, and microbiological counts in excess of tolerance limit as mentioned in the regulations as well
  5. The act mentions that, if it is a novel, genetically-modified article of food, irradiated food, organic food, foods for special dietary uses, functional foods, nutraceuticals, health supplements, proprietary foods, etc. it cannot be manufactured, distributed, sold or imported into India. Only those that the regulations and provisions of the Food Safety and Standards Act allow can be possible
  6. The Act mandates special labeling for different kinds of food and Food Business Operators are to adhere to these requirements strictly.

Penalties :

Under the act, there are different penalties for different kinds of non-compliance by Food Business Operators. The provisions of the Act include laws where offenses like manufacturing, storing or selling misbranded or substandard food is punishable with a fine. If the offenses are more serious, it could lead to imprisonment as well.  If consumption of unsafe/hazardous/toxic food results in any severe injury or death of a consumer, the Act makes it clear that the Food Business Operator has to pay a hefty fine for the same. 

  1. Some examples of penalties under the act include – 
  2. Penalty for substandard food – Up to 5 lakh rupees 
  3. Misleading advertisement or false guarantee – up to 10 lakh rupees 
  4. Unsanitary or Unhygienic manufacturing of food – 1 lakh rupees 
  5. If FBO are in possession of adulterant not injurious to health – 2 lakh rupees 
  6. If FBO possess adulterant injurious to health – 10 lakh rupees 
  7. Food found unsafe – imprisonment up to 6 months and a fine of up to 1 lakh rupees 
  8. Unsafe food results in grievous injury –  6 years imprisonment and a fine of up to 5 lakh rupees
  9. If unsafe food results in death – not less than 7 years imprisonment and fine up to 10 lakh rupees.
  10. The Act, notably, also provides for a penalty for Food Safety Officer for acting against a Food Business Operator on a false premise. 

Responsibilities of a Food Business Operator: 

  1. If you are a Food Business Operator, your first and foremost duty before beginning a Food business is to obtain a Food License to practice in the food business. It is mandated under the Act that any person planning to start a food business must obtain a license from the appropriate or designated authority. The Food Safety and Standards Act does not make it mandatory for petty business owners or manufacturers to obtain a license before starting a business. But the Act clearly mentions that everyone — even if they are a small or a large business —  must take care of the safety and standard of the food that is being prepared and sold. Therefore, the food must be safe and wholesome for the purposes of consumption, irrespective of who is involved in its manufacture or all kinds of handling.  
  2. The Act makes it mandatory for all Food Business Operators to ensure the safety of food. All the Food Business Operators must comply with the different rules of safety and include the nutritional content as specified by the Act. The Food Business Operators are also required to follow other regulations such as the labeling standards mentioned by the Act. 

Important Initiatives by FSSAI

Many important initiatives have also been taken by FSSAI keeping in mind food safety and standards. Following are few of these important initiatives:

  • Eat Right India – The aim is not just to provide food to one and all, but to provide quality food to everyone. With this initiative, FSSAI intends to make good quality food accessible to every citizen of the country
  • Clean Street Food – This involves training the street food vendors and making them aware of the violations as per the FSS Act 2006. This will also help in the social and economic upliftment of street food vendors
  • Diet4Life – This is another initiative taken by FSSAI, to spread awareness about metabolic disorders.
  • Save Food, Share Food, Share Joy – Encouraging people to avoid food wastage and promote food donation. Through this, FSSAI intends to connect food-collecting agencies with the food-producing companies and share the food with the ones in need

Apart from this, the first-ever World Food Safety Day was celebrated on June 7, 2019, by FSSAI, acknowledging the contribution of states, food businesses, and individuals in maintaining food safety.

Types of FSSAI Registration

FSSAI registration is based on the business types, turnover and capacity of production. Depending upon the installed capacity and turnover, FBOs are eligible for license such as basic license, central license, and state license.

  • FSSAI Basic Registration – FBOs having a turnover of less than Rs.12 lakh p.a must obtain FSSAI basic registration. The FSSAI registration form that the applicant has to fill to obtain FSSAI basic registration is Form A.
  • FSSAI State License – FBOs having a turnover of more than Rs.12 lakh p.a and less than Rs.20 crore p.a must obtain the FSSAI state license. The FSSAI registration form that the applicant has to fill to obtain an FSSAI state license is Form B.
  • FSSAI Central License – FBOs having a turnover of more than Rs.20 crore p.a must obtain the FSSAI central license. The FSSAI registration form that the applicant has to fill to obtain FSSAI central license is Form- B.

FSSAI Registration Eligibility

FSSAI Registration is a basic license and it is required for all the FBOs involved in the small-scale food business. This category covers the following businesses:

  • Any FBO with an annual turnover of not more than Rs. 12 lakh.
  • Petty retailer dealing in food products.
  • Any person who manufactures or sells any food article by himself.
  • Food sale is done by the temporary stall holder.
  • Any individual who distributes food in any religious or social gathering except a caterer.
  • Small-scale or cottage industries dealing in the food business.

Documents Required For Obtaining the FSSAI Registration/License

The following documents are required to obtain FSSAI basic registration, FSSAI state license and FSSAI central license:

  • Photo identity proof of the food business operators.
  • Business constitution certificate, i.e. partnership deed, certificate of incorporation, shop and establishment licence or other business registration certificate.
  • Proof of possession of business premises, i.e. rental agreement, NOC from the owner of the rented premises, utility bills etc.
  • Food safety management system plan.
  • List of food products manufactured or processed.
  • Bank account information.
  • Supporting documents (if required) like NOC by Municipality or Panchayat, Health NOC, copy of License from the manufacturer, etc.

Apart from the above-mentioned general documents, certain specific documents are required for obtaining the FSSAI state license and FSSAI central license. The specific documents required to obtain the FSSAI state license are:

  • Form B duly completed and signed
  • Plan of the processing unit showing the dimensions and operation-wise area allocation   
  • List of Directors/ Partners/ Proprietor with address, contact details, and photo ID
  • Name and list of equipment and machinery used with the number and installed capacity
  • Authority letter from manufacturer nominated a responsible person name and address
  • Analysis report of water to be used in the process to confirm the portability
  • Copy of certificate obtained under Coop Act 1861/Multi-State Coop Act 2002

Apart from the general license, the following specific documents are required to obtain FSSAI central license:

  • Form B duly completed and signed
  • Plan of the processing unit showing the dimensions and operation-wise area allocation   
  • List of Directors/ Partners/ Proprietor with address, contact details, and photo ID
  • Name and list of equipment and machinery used with the number and installed capacity
  • Authority letter from manufacturer nominated a responsible person name and address
  • Analysis report of water to be used in the process to confirm the portability
  • Source of raw material for milk, meat etc
  • Recall plan wherever applicable
  • Ministry of Commerce Certificate for 100% EOU
  • NOC/PA document issued by FSSAI
  • IE code document issued by DGFT
  • Form IX
  • Certificate from Ministry of Tourism
  • Supporting document for proof of turnover and transportation
  • Declaration form

Obtaining a license can provide the food business with legal benefits, build goodwill, ensure food safety, create consumer awareness, and assist in business expansion. Also, it helps regulate, manufacture, storage, distribution and sale of import food. It is easy to obtain funds from investors when an FBO has FSSAI registration.

The FSSAI logo on the food products ensures the quality of food to the customers. The FSSAI registration number displayed on the food premises indicate that the premises comply with the hygiene and quality standards.

Procedure for Obtaining FSSAI Registration Online

  • FBOs can obtain FSSAI registration online by filling and submitting the FSSAI registration form, i.e. Form A (application for Registration) or Form B (application for State and Central License) on the FoSCos portal. The FBOs can also register offline by submitting Form A or Form B to the Food and Safety Department.
  • The FSSAI registration form must be accompanied by the required documents. The documents must be uploaded online on the FoSCos portal at the time of filling the application or submitted to the Food and Safety Department along with the application physically.
  • The FSSAI registration form can be accepted or it may be rejected by the Department within 7 days from the date of receipt of an application either physically or online through the FoSCoS portal. If the application is rejected it has to be intimated to the applicant in writing.
  • The Department will scrutinise the documents submitted.
  • The Department may conduct an inspection of the food premises, before granting the FSSAI registration certificate, if necessary.
  • If the Department is satisfied that the FBO meets all the required criteria, then it will grant an FSSAI registration certificate with the registration number and the photo of the applicant email ID. The applicant can also download the FSSAI registration certificate by logging into the FoSCoS portal.
  • FBO should prominently display the certificate of FSSAI registration at the place of business during business hours.

Golden Rule of Interpretation

Meaning

Golden rule argument is an argument made by a lawyer during a jury trial to ask the jurors to put themselves in the place of the victim or the injured person and deliver the verdict that they would wish to receive if they were in that person’s position.

one of the three basic three rule of interpretation, Construction is “Golden Rule”. the Golden Rule of interpretation can be said as the modification of Grammatical Rule of Interpretation. The Golden rule is also called the British rule of interpretation. it was originated in England

in 1854 and it was coined by C.J. in the case of it is a form of statutory interpretation which allows a judge to depart from a normal meaning of the word in order to avoid an absurd result.

According to Maxwell, “The golden rule is that words of Institute must prima facie be given their ordinary meaning”.

According to Gray, “the process by which a judge (or indeed any person, lawyer or layman, who has occasion to search for the meaning of a statute) constructs from words of a statute book, a meaning which he either believes to be that of the legislature, or which he proposes to attribute to it, is called interpretation”.

As we know applying the bare letter of law sometimes may lead us to confusion and give us an absurd result, in order to overcome these kinds of results judges will give an opportunity to the lawyer to come up with a new interpretation to the law which will be more certain and accurate to the case. In the year 1857, for the first time, Lord Wesleyan propounded the golden rule of interpretation, in Grey Vs. Pearson. Thereafter this rule has become famous by the name of Wensleydale’s Golden rule. The Golden Rule was used in the R v Allen case (1872) 2 ALL ER 641 In this the defendant was charged with bigamy (S.57 of offences against the person act 1861) which, under statutes states: ‘whosoever being married shall marry any other person during the lifetime of the former husband or wife is guilty of an offence’.

This method of interpretation is also known as the compromise method between literal rule and the mischief rule. In the literal rule, judges will only use the word meaning nothing else, but sometimes this may be irrational and gives us unexpected results which will be unlikely to the legislator’s intention.

In the case of homographs, where a word can have more than one meaning, the judge can choose the meaning which is suitable in that particular case if the word only has only one meaning, but applying that would lead to a bad decision where the judge can apply that decision and arrive at a completely different meaning.

This rule is used in two main situations:

  1. When the meaning of the word is too narrow.
  2. When the word itself has ambiguity or absurdity.

For example: 

  1. Whenever you stand near the lift it will be written that ‘’Do not use lifts in case of fire.’’ if you consider it in a literal sense you should never use the lifts, this would be an absurd result because the intention of the person who put the sign is to prevent use of lift when there is live fire burning anywhere near the lift.
  2. When a son murdered his mother and committed suicide, now the court has to decide who will inherit the property is its mother’s family or the son’s descendants. The judgment came out in favour of the mother’s family, here what we have observed here is that the son never had the intention of making a profit by his crime, but now this judgment will be binding on all the lower courts.

R v. Allen, 1872 The defendant was charged with an offence of bigamy under section 57 of ‘offence against person act 1861’. The statutes states “whoever being married shall marry any other person during the lifetime of husband and wife is guilty of an offense.”

Under the literal rule of interpretation of this section, the offense would be impossible to commit since the civil law will not recognize a second marriage as an attempt to marry in such circumstances would not be recognized as a valid marriage. Court applied the golden rule and held that the word marriage should be interpreted as ‘to go through a marriage ceremony.’ The defendant was convicted and held guilty.

Adler v George case, 1964 Under section 3 of the ‘official secrets act,1920’ it was an offence to obstruct HM Forces in the vicinity of a prohibited area. Adler was arrested for obstructing forces whilst in a prohibited area. Under The Literal Rule, Adler was not in the vicinity of the area, he was in the area and so was not infringing the terms of the act. The Golden Rule was applied to extend the meaning of ‘vicinity’ and avoid the possible absurd outcome.

Golden Rule of Interpretation in India:

According to the Goleden Rule the Courts in order to find out the intention of the legislatures from the word used in the Statues, give the words their original and natural meaning. The Supreme Court applied The Golden “Rule of Interpretation in Golakanath’s Case AIR 1967 SC 1643, in this case Supreme Court applied the Golden Rule of interpretation held that the Parliament cannot amend the constitution affecting the provision under part III of the Constitution (Fundamental Rights) of the constitution.

In Lee v. Knapp, (1967) 2 QB 442. section 77(1) of the Road Traffic Act, 1960 provided that “a driver causing accident shall stop after the accident”, the interpretation of the word “stop” was in question. In this case, the driver of the motor vehicle stopped for a moment after causing an accident and then ran away. Applying the golden rule the court held that the driver had not fulfilled the requirement of the section, as he had not stopped for a reasonable period so as to enable interested persons to make necessary inquires from him about the accident at the spot of accident.

In Ramji Missar v. State of Bihar AIR 2003 P&H 135, in construing section 6 of the Probation of Offenders Act, 1958, the Supreme Court laid down that the crucial date on which the age of the offender had to be determined is not the date of offence, but the date on which the sentence is pronounced by the trial court An accused who on the date of offence was below 21 years of age but on the date on which the judgment pronounced, if he was above 21 years, he is not entitled to the benefit of the statute. This conclusion reached having regard to the object of the Act. The object of the Statute is to prevent the turning of the youthful offenders into criminals by their association with the hardened criminals of mature age within the walls of the prison. An accused below 21 years is entitled to the benefit of the Act by sending him under the supervision of the probation officer instead of jail.

In Uttar Pradesh Bhoodan Yagna Samiti v. Brij Kishore 1988 RD 363 (SC) The Supreme Court held that the expression “landless person” used in Section 14 of the ‘U.P. Bhoodan Yagna Act, 1953,which made provision for grant of land to landless persons, was limited to “landless labourers”. Landless labour is he who is engaged in agriculture but having no agricultural land.

The Court further said that “any landless person” did not include a landless businessman residing in a city. The object of the Act was to implement the Bhoodan movement, which aimed at the distribution of land to landless labourers who were vested in agriculture. A businessman, though landless cannot claim the benefit of Act.

Narrow Approach– This approach is applied when the word or phrases capable of more than one literal meaning. This allows the judge to apply the meaning which avoids the absurdity.

Broad Approach– This approach is applied when there is only one literal meaning. But applying that one literal meaning would cause an absurdity. Under this approach the court will modify the meaning to avoid the absurdity. The modification shall be keeping in mind the intention of the Parliament making the law in question.

The golden rule of statutory interpretation allows a shift from the ordinary sense of a word(s) if the overall content of the document demands it. It states that if the literal rule produces an absurdity, then the court should look for another meaning of the words to avoid that absurd result. The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument in which case the grammatical and ordinary sense of the words may be modified so as to avoid the absurdity and inconsistency, but no farther.

ADVANTAGES OF GOLDEN RULE

  • It allows the judge to choose the most sensible meaning where there is more than one meaning to the words in the Act or Statute.
  • It respects the words of the parliament except in limited situations, the golden rule
  • provides an escape route where there is a problem with using the literal meaning.
  • It can also provide reasonable decisions in cases where the literal rule would lead to repugnant situations (this goes for the wider meaning) – This is present in the Re Sigsworth case in the case example, because allowing the son to benefit from his crime would have been unjust.
  • A major advantage of the Golden Rule is that judge can technically change the law by changing the meaning of words in statues. They can, potentially infringing the separation of power between legal and legislature.
  • Another main advantages of the Golden Rule is that drafting errors in status can be corrected immediately. This is seen in the R V Allen (1872) case where the loopholes were closed, the decision was in line with parliament’s intentions, and it gave a more just outcome.

DISADVANTAGE OF GOLDEN RULE

  • There is no real guidelines as to when it can be used
  • It is very limited in it is use, so it is only used on rare occasions.
  • It’s not always possible to predict whether courts will use the golden rule, making it hard for lawyers and people who are advising their clients.
  • What seems to be absurd to one judge may not be to another so this means a case outcome is decided upon the judge, rather than the law
  • The Golden Rule won’t be help if there is no absurdity in the statute. For example, in the case of London and North Eastern Railway v. Berriman [1946] AC 278, where the widow couldn’t get compensation because the wording of the statute didn’t allow for this circumstance.

Criticism

One of the biggest criticisms against the Golden Rule of Interpretation is the very limited scope for judges to interpret. Much like the Literal Rule, the golden rule lays that first priority shall always be given to the natural meaning of the statute and judges do not hold much of discretion or freedom in analyzing the meaning of provisions.

The word “absurdity” is a vague concept and arises only in a few cases where it necessary for the court to apply the golden rule of interpretation. Golden rule suffers from the same problems which were faced by the Literal approach i.e. lack of wider contextual understanding of “meanings.” The majority of the cases contain tough scenarios where touch choices have to be made between many credible arguments, not scenarios in places where wordings of the legislation take you to obvious ambiguity.

  • This infringes the separation of power among the wings of the government that is between judiciary and legislature.
  • Here judges can technically change the law by changing the meaning of the words in the statute.
  • This method can be used only when there is an absurdity in the statute.

Only when some kind of absurdity or repugnancy is caused in pursuant to the literal meaning would the Judges be allowed to alter the natural meaning of the Statute. Absurdity is a term no less vague or ambiguous than the plain meaning of any statutory provision.

Placing reliance on the applicability of the rule entirely upon vague, undefined and subjective concept defeats the purpose of the rule as its ultimate applicability depends on the social and political views of the judge. It is how the judge perceives the word absurdity upon which the entire applicability of the rule is depended.

CONCLUSION

The usage of the Golden rule in today’s scenarios is that the court uses a tool to achieve the desired results. In the rare cases where the disputed wordings are either narrow or accurate and too plain to be held by the judges to be not accurate but make them applicable would and too plain to be held by the judges to be not accurate but make them applicable would original meaningful sense, hold that in making them applicable on the situations of the said case that would result in a ‘vague’ to which the law-making body cannot be made accountable, and, adducing the ‘golden rule,’ will work out an implied exception.

  1. It is the duty of the Court to give effect to the meaning of an Act when the meaning can be fairly gathered from the words used, that is to say, if one construction would lead to an absurdity while another will give effect to what common sense would show, as obviously intended, the construction which would defeat the ends of the Act must be rejected even if the same words used in the same section, and even the same sentence, have to be construed differently. Indeed, the law goes so far as to require the courts sometimes even to modify the grammatical and ordinary sense of the words, if by doing so absurdity and inconsistency can be avoided.
  2. The Court should not be astute to defeat the provision of the Act whose meaning is, on the face of it, reasonably plain. Of course, this does not mean that an Act or any part of it can be recast. It must be possible to spell the meaning contended for, out of the words actually used
  3. Unless the words are without meaning or absurd, it would be safe to give words their natural meaning because the framer is presumed to use the language which conveys the intention and it would not be in accord with any sound principle of construction to refuse to give effect to the provisions of a statute on the very elusive ground that to give them their ordinary meaning leads to consequences which are not in accord with the notions of propriety or justice entertained by the Court.