Archive for the ‘News’ Category
“India is a country in which every great religion finds a home” – Annie Besant
India is a diverse country, comprising of various religions, which are characterised by individual religious beliefs and practices. Due to religion-specific civil codes that govern these religions consequently marriages are governed by different personal laws. However, alarm bells start to ring when practices and beliefs of followers of these religions get entangled within the different laws of the land.
The Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 are well established civil codes which pertain to the issues and legalities of marriage. At times their applicability and scope are unclear. Even though both these laws address similar issues and have specific boundaries within which they function yet both are distinctly different from each other.
The Hindu Marriage Act, 1955 applies to all forms of Hinduism and also recognises offshoots such as Sikhs, Jain and Buddhists. This Act also applies to anyone who is a permanent resident in the India and is not a Muslim, Jew, Christian, or Parsi by religion.
Whereas, the Special Marriage Act, 1954 basically deals with inter caste and inter-religion marriages and therefore, applies to marriages among Hindus, Muslims, Christians, Sikhs, Jain and Buddhists. This Act extends not only to the Indian citizens belonging to different castes and religions but also to the Indian nationals living abroad. This act applies to every state of India, except the state of Jammu & Kashmir.
The Hindu Marriage Act, 1955, recognizes the ceremonies and customs of marriage. Thus the marriage may be solemnized in accordance with customary rites and ceremonies of either party. However, different dominions under the Hindu religion may have different rituals that may be performed in order to solemnize the marriage. Furthermore, the state government may make rules for the registration of Hindu marriages as may be prescribed in the Hindu Marriage Register. This registration is for the purpose of facilitating the proof of Hindu marriages. The Hindu Marriage Register is open for inspection at all reasonable times and is admissible as evidence of the statements contained therein.
Whereas, under the Special Marriage Act, 1954, if the parties are ready to marry each other, it is sufficient, neither the caste nor the religion of the individuals marrying hinders their union in any manner. The parties need to file a notice expressing their intention to marry each other, with the Marriage Registrar of the district, in which at least one of the parties to the marriage has resided for at least 30 days preceding the date on which such notice is being filed. The marriage is then said to be solemnized after the expiry of 30 days from the date on which such notice has been published. If any person, related to the parties, objects to this marriage and the Registrar finds it to be a reasonable cause of objection, then he can cancel the marriage on such grounds. For a valid marriage, it is a pre-requisite that the parties give their consent to the marriage in front of the Marriage officer and three witnesses.
Due to the respective characteristics of both acts, there is a wall that separates them. However, even though they are separated from the waist below they are one from the waist above. For instance, under both acts, the age limit for the bridegroom is 21 and that of the bride is 18 years, at the time of marriage. Further, both parties to the marriage must be unmarried and should not have any living spouse at that time. Both acts, mention that the parties to the marriage should be sane and mentally fit in order to be able to decide for themselves. They should not come under prohibited relationships, which will otherwise act as a ground to dissolve their marriage.
In conclusion, it is apparent that if the parties to the marriage are Hindu then they will be governed by the Hindu Marriage Act, 1955 and whereas if the parties to the marriage belong to the different religions but are willing to get married, they have to get themselves registered under the Special Marriage Act, 1954. Once, they get themselves registered, they will be governed by the provisions of the Special Marriage Act, 1954, and other secular and religious laws will have no implications on their marriage.
Whilst religions may differ and so would the rituals but the law regarding marriages in India, stands tall for all, without any prejudice, for it is clear and unambiguous allowing practitioners of various faiths and religions to get married.
Junior Associate Lawyer, SMA Legal
When Mr. Narendra Modi was elected as the Prime Minister of India, many had expected him to fire, right up front. And that he did. At the stroke of dusk on 8th November, 2016, Mr. Modi took the country by surprise, by announcing that all the existent currency notes of INR 500 and 1000 will cease to be legal tender, as soon as the date changes to 9th November, 2016.To replace them, new notes of INR 500 and a brand new denomination note of INR 2000 will be introduced into the economy.
Quoting it as a part of the plan to curb the rampant corruption, the Prime Minister and his team has come up with a unique way of bringing unaccounted cash worth billions of rupees, to the mainstream economy. Here is a summary of the saga of the major “Modi” assault on fake currency, corruption and black money:
- Currency notes of INR 500 and 1000 will cease to be legal tender, with effect from 12 AM, 9th November, 2016.
- All the banks will remain closed on 9th November, 2016, to remove these notes from their counters and their ATMs.
- A person can deposit all the notes of INR 500 and 1000 denominations in his bank or post office account, from 10th November, 2016 to 30th December, 2016.
- Alternatively, the notes of these denominations can be exchanged at any bank, head post office or sub post office, with a limit of aggregate INR 4000.
- Government hospitals and pharmaciesat these hospitals will continue to accept these denominations for 72 hours, from 12 AM, 9th November, 2016.
- The daily cash withdrawal limit will be set at INR 10000 and the weekly limit at INR 20000.
- New notes of INR 500 and INR 2000 will be launched on 10th November, 2016, carrying the pictures of the Red Fort and the Mangalyan (India’s Mars mission), respectively.
A couple of hours after the announcement, the SBI Chairman, Ms. Arundhati Bhattacharya stated that the bank has been directed by the government to demonetise the current series of INR 500 and 1000 notes.
This is certainly an audacious and powerful step by the government of the country, which is keen to prove that it is leaving no stones unturned in its quest for a corruption-free nation.
Junior Associate Lawyer, SMA Legal
The Surrogacy (Regulation) Bill, 2016 which was passed on August 24, 2016 has triggered a debate whether the proposed bill has likely more cons than pros. The new Surrogacy Bill aims to protect the rights of the surrogate mother as well as the child and has banned commercial surrogacy. It only allows for “altruistic surrogacy” for childless couples who have been married for at least five years. Moreover, the surrogate mother should be a “close relative” of the couple, should be married and have borne a child of her own. Surrogacy is when a woman carries a baby for another couple and gives up the baby at birth, whereas, altruistic surrogacy can be defined as a surrogacy arrangement without transfer of funds as inducement.
The commercial surrogacy market in India has been estimated as a 2 billion dollar industry and it is foreigners who account for 80% of this market, as commercial surrogacy has only been allowed in a few countries like Russia, Ukraine and few states of USA. It was the Baby Manji case in Gujarat which had prompted the authorities to regulate the surrogacy industry in India.
The Bill has been formulated to prevent exploitation of the surrogate and that the child always has a legal status. The rights of the surrogate child will be the same as that of a biological child. An agency along the lines of the Central Adoption Resource Agency would be created to regulate surrogacy. Commercial surrogacy, abandoning the surrogate child, exploitation of surrogate mother, selling/ import of human embryo have all been deemed as violations that are punishable by a jail term of at least 10 years and a fine of up to INR 10 lakh. Clinics would have to maintain records of surrogacy for 25 years.
The Bill also allows couples with a mentally or physically challenged child or one with a life-threatening disorder to opt for surrogacy. This seems insensitive of the condition of the mentally or physically challenged child. It also bans foreigners, unmarried persons, homosexuals, and couples in a live-in relationship. The commercial market of surrogacy has grown due to these foreigners; it has become a livelihood for low-class income women. The commercial market was a win-win situation for both- giving the foreign couple a child and the women money to survive or maintain her livelihood.
The Bill should have addressed the issue of the middlemen who exploit these women instead of banning commercial surrogacy. Commercial surrogacy has only developed due to the failure of the altruistic surrogacy. Also, the reason given for the banning of foreign couples was because their marriages are easy to break. This issue had only cropped up due to the Baby Manji case, where still the Baby has no legal status in any country.
Banning homosexuals and live-in relationship couples shows a very stone-age thinking of the government as allowing them would have given a certain recognition of these couples which is necessary in today’s world. The Bill also creates various ambiguous situations which have not been answered- what if the couple was orphans and has no immediate family, what if the couple had married against the wishes of their family, what if there are no eligible women for surrogacy due to age and physical inability in the family etc.
The cabinet’s decision does not appear to be in consonance with constitutional provisions. Restricting conditional surrogacy to married Indian couples and disqualifying others on the basis of nationality, marital status, sexual orientation or age, does not appear to qualify the test of equality under Article 14 of the Constitution and has no correlation with the proposed objectives of the legislation. Further, the right to life under Article 21 includes the right to reproductive autonomy — that includes the right to procreation and parenthood. It is not upon the state to decide the modes of parenthood for a person. In B. K. Parthasarthi v. Government of Andhra Pradesh, the Andhra Pradesh High Court upheld “the right of reproductive autonomy” of an individual as a facet of his “right to privacy” and agreed with the decision of the US Supreme Court in Jack T. Skinner v. State of Oklahoma, which characterized the right to reproduce as “one of the basic civil rights of man”.
Banning commercial surrogacy would only give a rise to the black market of wombs.
The government, on 16th March 2016, proposed the Companies (Amendment) Bill, 2016 in the Lok Sabha as per the recommendations of the Companies Law Committee (CLC). The Bill aims to ease the implementation of the existing Act of 2013 with the following suggestions:
- Modifications to major definitions: The bill, accepting the recommendation of the CLC, has suggested revamps to the definitions of associate company, subsidiary, joint venture, holding company, related party and financial year. As per the bill, for a subsidiary, the basis of deciding a subsidiary relationship would be ‘total voting power’, instead of the current ‘total share capital’ under the Section 2(87)(ii) of the Act of 2013. The bill also proposes to mandate the use of the Indian Accounting Standard 28 (Investment in Associates and Joint Ventures), while defining joint ventures.
- Regarding matters in the prospectus: Amending the Section 26(1) of the 2013 Act, the bill proposes to empower the SEBI to underline the contents in a company’s prospectus. This amendment aims to create a uniform system of disclosures in the prospectus, the regard to which can be made obligatory for all the companies.
- Appointment and qualification of Independent Directors: The Bill attempts to clear the air as regards the determination of those relationships, which may impact the independence of such a director. It suggests bringing in a test of materiality, on the basis of which such a determination can be made.
- Punishment for fraud: The bill proposes that instead of any fraud, only those frauds which involve at least a sum amounting to INR 10 lakh, or 1% of the total turnover of the company, shall be punishable under the Section 447. It further puts an additional proviso, stating that in a case where the fraud involves an amount less than the abovementioned limit and does not involve public interest, the punishment for such a fraud shall be imprisonment up to 5 years or with fine up to INR 20 lakh, or both.
- CSR: The bill proposes an amendment in the Section 135 of the current Act, which pertains to Corporate Social Responsibility. As per the bill, the eligibility criteria for determining the expenditure towards CSR should be calculated based on the immediately preceding financial year, thereby amending the current basis of the preceding three financial years.
The Bill, apart from the major changes listed above, suggests about 70 amendments to the Act of 2013. The major aim of the bill is to bring clarity to certain provisions, like the definition of holding companies, which have been debatable over the years. The Bill can be considered a welcome piece of legislation, as it will provide more clarity, uniformity and better implementation of the Act of 2013. These changes will go a long way in addressing the challenges faced by the companies from the current Act.
India ranks 3rd on the list of top prospective host economies, thanks to the ‘Make in India’ initiative
According to the World Investment Report (WIR) of 2016, India has landed 3rd place on the list of top perspective host economies of 2016-2018. This is due to the various recent government measures to boost the investment environment and bring in foreign investment.
Foreign direct investment and the ‘Make in India ’ initiative
The initiative was launched by the Indian government with an aim of promoting India as an important investment destination and a global hub for manufacturing, design and innovation, in September 2014. Additionally, it aims to increase the GDP and tax return revenues in the country, by producing products that meet high quality standards, and minimizing the impact on the environment.
Since its launch, the country has seen a surge in foreign direct investment (FDI), which has increased by 46 percent from $42.31 billion to $61.58 billion between the periods of October 2014 to May 2016.
Increase in Entrepreneurship applications
Industrial entrepreneurship memorandum (IEM) has seen an increase in membership applications since the introduction of ‘Make in India’ initiative. This signals a new attraction towards the Indian market as a significant place to set up a business. Relaxed regulation on foreign investors means a greater willingness on their part to set up subsidiaries or invest in the Indian economy.
Improving ease of doing business
The jump in FDI has led to the government taking various measures like opening up FDI in many sectors, carry out FDI related reforms and improving ease of doing business. Ministers are now being advised to simplify and rationalize the regulatory environment through business process re-engineering and the use of fast and effective information technology.
It has been assessed that since the launch of the initiative, the services, trading, automobile and power sectors attracted the most FDI.
The government has claimed that it has received Rs. 1.10 lakh crore worth of proposals from various companies that are interested in manufacturing electronics in India. With companies like Xiaomi and Huawei already setting up manufacturing units in India, while iphone manufacturer Foxconn expected to open a manufacturing unit soon, India’s economic strength is ever growing.
The latest print release of the Press Information Bureau audaciously hails India as the “most open economy in the world”. This comes with the announcement of the government on the 20th of June, 2016, which brings in breakthrough amendments in the current FDI policy. With increased sectoral caps and further drift towards the automatic sector being the highlights, these changes aim to accelerate foreign investment in India.
The major revamps are as follows:
- Defence Sector: The latest policy now allows FDI in the defence sector up to 100%. An investment beyond 49% would require the approval of the government. Furthermore, the mandate for the investors to give access to ‘state-of-art’ technology for investments over 49% has been done away with. These changes have also been made applicable to the manufacturing of small arms and ammunitions covered under the Arms Act, 1959.
This could well be a welcome change for the defence sector, which could manage a foreign investment of only INR 64 Lakhs in the previous financial year.
- Trading of food products: A radical change introduced in this arena is the permission of up to 100% FDI under the approval route, for the trading of the food products manufactured in India. This includes their trading through e-commerce as well.
- Civil Aviation: The latest announcement allows 100% FDI in indigenous airlines. Moreover, 100% FDI is now permitted in the existing airport projects (Brownfield avenues) through the automatic route, which was limited to 74% so far. These changes should intermingle well with the current aviation policy. Together, they will aid the modernization of the existing airports and will help ease the pressure on them.
- Pharmaceutical Sector: In the Brownfield pharma avenues, the government has now allowed up to 74% FDI under the automatic route. However, for an investment beyond 74%, the approval of the government would be required.
- Animal Husbandry: The latest amendment removes the requirement of ‘controlled conditions’ for FDI in Animal Husbandry, Pisciculture, Aquaculture and Apiculture. It has trimmed the earlier provision to allow 100% FDI in these sectors through the automatic route, without any conditions.
- Establishment of branch/liaison/project office: This amendment applies to the entities which are into the businesses of Defence, Telecom, Private Security or Information and Broadcasting. It lifts off the mandate to get additional permissions from the RBI or other nodal security agencies, if an approval from the FIPB or the concerned Ministry has been taken.
- Private Security Agencies: The government has now allowed FDI up to 49% through the automatic route in this sector. For an investment above 49% and up to 74%, the approval from the government would be required. This liberalizes the current provision, which allows only up to 49% FDI through the approval route.
- Broadcasting Carriage Services: In order to develop this sector, the government has announced a cap of 100% on FDI via the automatic route, on listed activities. These activities include teleports, DTH services, cable networks and mobile TV.
- Single Brand Retail Trading: On the request of single brand retail entities like Apple Inc., the local sourcing norms on such entities have now been relaxed, provided their products have ‘state-of-art’ and ‘cutting-edge technology’.
The changes have stirred an immediate positivity in the market, with the Sensex ballooning up by 241 points right after the announcement. However, its long-term effects, primarily on the defence sector, can prove to be intriguing.
http://pib.nic.in/newsite/PrintRelease.aspx?relid=146338 (PIB Release)
http://dipp.nic.in/English/policies/FDI_Circular_2016.pdf (FDI Policy, 2016)
http://dipp.nic.in/English/acts_rules/Press_Notes/pn12_2015.pdf (Press Note of November, 2015)
Mr. Shantanu Mohan Puri (standing at extreme right) with some of the other participants
Mr. Shantanu Mohan Puri, the Managing Partner of SMA Legal participated in a One-Day seminar on Indian Management and Business Challenges for Danish companies already established in India, working with Indian partners or those considering investing in India.
The seminar emphasized on a better understanding of the differences between Management practices in India and Denmark, the dilemmas of expatriate managers, difference between the management styles, values, work ethics and cultural aspects in both counteries.
The seminar was attended by Danish CEO’s/Managers, who are interacting with their Indian subsidiary, partners, distributors or employees and also those who are considering to start their business in India.
During the seminar, Mr. Puri, gave a presentation presenting the Cultural aspects of the Indian legal system: Issues to consider while doing business in India. It discussed the impact and understanding of cultural diversities on Indian law. An important part of his talk was on how to bridge the cultural and legal gap, while doing business in India.
There are 25 million Indian citizens, who are living abroad and the vast majority of them aren’t registered to vote in the world’s largest democracy. Hardly surprising, given the fact that these so-called NRIs have to show up in person in their home constituency on polling day, if they want to take part in the democratic process.
However, now India is all set to streamline the voting process for those, living outside India. It is bound to be welcome news for more than 11 million NRIs across the world that the Supreme Court has approved e-ballot voting for the Indian passport holders abroad, as recommended by the Election Commission. The Apex Court has directed the government to amend laws to put the whole process in place.
In e-voting process, a blank postal ballot paper is emailed to the voter, which is to be filled by an NRI and post it to their constituency. Nevertheless, there is a little risk of manipulation, rigging or violation of secrecy in this system.
This decision also, historically, removes an “unreasonable restriction” posed by Section 20 (A) of the Representation of the People (Amendment) Act of 2010, which required the overseas electors to be physically present in their constituency to cast the vote.
Through this process, NRIs can realise their dream of redefining the political landscape by casting their ballots from where they are, instead of physically coming to India.
The NRI population is 25-million strong, the second largest Diaspora after the overseas Chinese. So far, only a miniscule number of NRIs came to India to cast their votes, considering the expense and time involved.
In a view, the government’s decision to allow NRIs to vote could set the stage for expatriates to emerge as a decisive force in the country’s electoral politics. These additional votes will play a crucial role in state and general elections.
The Embassy of France in India, New Delhi on the 27thAugust, 2015 has appointed Advocate Shantanu Mohan Puri, Managing Partner of SMA Legal as Legal Advisor to the Embassy. Mr. Atul Srivastav, Social Attache, Embassy of France in a communication has conveyed that in his capacity as a Legal Advisor, Mr. Puri and SMA Legal would administer advice on judicial matters and also provide legal expertise besides representing the Embassy in disputes of judicial nature.
SMA Legal is a boutique Legal Advisory Firm that specializes in high profile cases involving large Indian corporations, International companies with business interests in India, distinguished individuals and country missions to India.
SMA Legal is also providing legal services to numerous other foreign missions including the missions of Portugal, Spain, Netherlands, Switzerland, Greece, United Kingdom, Canada, United States of America and Germany in New Delhi and other Metropolitan cities across India.