Generic selectors
Exact matches only
Search in title
Search in content
Search in posts
Search in pages
Category

The Law

Home / The Law
GC Garg & Associates, Jaipur
Internship Experiences

Internship experience at G. C. Garg & Associates, Jaipur

Name, College, Year of study of the student intern: Riya Saxena, Ramaiah Institute of Legal Studies, Bengaluru, 3rd year (5-year integrated law)

Name of the Organization: G.C. Garg & Associates, 
D-105, Lal Kothi Marg, Bapu Nagar,
Jaipur, Rajasthan

Duration of internship: 16th January 2020- 8th February 2020

Office hours: 9:00 A.M. to 8:00 P.M. with only Sundays off.

Application procedure:

You can apply by sending a cover letter and resume on the Email ID: gcgargadvocate1962@hotmail.com

Phone number: +91-1412707367

First day formalities, infrastructure, first impression:

On the first day of my internship, I reached before time and waited for Sir to come. I was welcomed and addressed by Advocate Alok Garg, Managing Partner at G.C Garg & Associates. He is known practicing lawyer at the High Court, Rajasthan as well as in Debt Recovery Tribunal, Jaipur. Thereafter, he asked me about my areas of interest and my previous internships. He then asked me to go through the Commercial Courts Act and make a report on it. He also gave a brief about the same. 

The formal introduction with all the associates and clerks takes place during lunch where everyone in the chamber eats together. My first experience was positive.

Major roles and responsibilities:

I was required to assist on the on-going cases. I was expected to do research from various sources. I was also asked to make case notes, attend proceedings in High Court, Jaipur as well as in Debt Recovery Tribunal, Jaipur according to their listing of matters. The research topics ranged from Corporate and Constitutional Laws, Insolvency and Bankruptcy Laws to even Family laws. Research, attending Court Proceedings and Drafting Work was the major work allotted.

Working Environment:

The work environment is quite strict. The associates as well as the interns were not allowed to use their phones during the working hours. You can take only one break for lunch of 30-35 minutes. 

The office is located very near to the High Court, Jaipur. The chamber has a good infrastructure with an impressive library. Access to SCC and Manupatra and other assistance to make your research effective and efficient is also provided.

The associates, clerks and everyone present was very co-operative. Everyone was very professional, and disciplined.

Highlight of the internship:

From witnessing Sir arguing in the Court to working with him on cases, the whole experience was very enlightening. Alok sir also makes sure that appreciation is given when earned. Appreciation from someone of his stature means a lot. The dedication and discipline Sir worked with had inspired me from day one.

Bad things:

The internship is not an easy one especially for someone who likes to work in a relaxed atmosphere. The strictness with respect to time had to be always kept in mind.

Overall experience:

My overall experience was very good. Apart from the many things useful for my legal profession, I have learnt the importance of time management and a disciplined way of life. I definitely recommend this internship to all the future lawyers who are willing to challenge themselves to learn new things and follow a strict routine throughout the week. The assistance and experience given by Sir himself was commendable. He was always willing to solve all my doubts and helped me to create a different perspective to look at things from. 

Stipend:

No stipend.

Suggestions for accommodation and places to chill nearby:

The chamber is situated in Lal Kothi, where one can easily find PGs and rooms on rent. There are number of coaching centers present in the area due to which the availability of accommodation is not a problem. There are various food joints at about 700 meters from the office. One can also find quite a number of cafes, restaurants, dining places nearby.

Any prospect for Pre-Placement offers or P.P.O.:

Though this internship is worth an experience, one should not have high expectation with respect to pre-placement offer. 

Case Reviews

Naveen Jindal vs. Zee Media Corporation Ltd. And Ors. 219 (2015) DLT 605

The case relates to the powers of the Court to order pre-publication and pre- broadcasting Injunctions in case Defamation charges have made against the Media House. 

Relevant Facts 

The Appellant in the matter is an industrialist and Chairman of M/s. Jindal Steel & Power Limited and the Defendant is a media house company.  

  • The present application is filed seeking an interim injunction to restrain the defendants, etc. from writing, telecasting or airing any material, article, news etc. directly or indirectly pertaining to the purported allegations made against the appellants. The allegation pertains to an alleged incident of the year 2001 and 2010 by a lady who has been described in the plaint as Mrs. ABC. Other connected reliefs were also sought.
  • It is alleged that in September of 2012, an enormous demand by way of extortion was made by the Editors and Chairman of Defendant No. 1. This extortion call, it is said, was made pursuant to a vilification campaign against the plaintiff and his company in relation to a purported coverage of coal-gate scam in which the plaintiffs company was sought to be falsely implicated. Various Litigations were initiated by both the parties.
  • The present scenario has fallen out of the WP No. 235/2014 at the Chhattisgarh High Court which was filed by Mrs. ABC on the acts of Mr. D.K. Bhargava by coming to her home and removing her clothes and robbing her chasity. D.K. Bhargava with others also took thumb expression on the documents forcibly.
  • An order was made on 06.01.2015 by the HC and on this order the defendants in the present case made publications/news programs in respect of the Appellants that was alleged to be misleading and fake and was called out as a violation of Article 19 and Article 21 of Constitution.
  • Argument and reliance on different cases was made by both Appellants and defendants on the issues framed by the court.

Key Issues

  1. Whether the Court has the powers to grant a pre-publication or pre-broadcasting injunction against the defendants.
  2. Under what facts and circumstances, should the court exercise its jurisdiction to grant an injunction regarding publication of news item or broadcasting of programmes?

Arguments made by the Plaintiff

Since the defendants have aired more than 20 news programmes, it is not just causing defamation to the Plaintiff but also interfering with the administration of justice. It is also urged that the actions of defendants are motivated by malafides and an order of temporary injunction should be passed against the defendants. Reliance was also placed on Article 21 and the rights of plaintiff were also trampled upon and also urged that irresponsible reporting was done by the defendants. 

The plaintiff’s plea of temporary injunction was also supported by a variety of case laws in the issue of pre-publication and pre- broadcasting injunction. 

Arguments made by the Defendants

It is been contented by the defendants that the suit is not maintainable as it directly corresponds to the suit of Chhattisgarh HC and it lacks a necessary party that should also be made as a party i.e Mrs. ABC. It is also put at reliance that the suit is barred as a similar suit for injunction was made in the year 2014 before the same court and the directions in the same were followed meticulously by the defendants. It was further urged that at best the reports made by the defendant are a case of fair comment and justification. It is further urged that this is a complete defence to a suit for defamation and no stay can be granted. It is also stated that the plaintiff is a public figure having been a Member of Parliament. Public is interested in the activities of a figure like the plaintiff and there can be no restrictions imposed on a right to comment upon the conduct of the plaintiff.

Analysis

The court in the present case, did not restrict its scope and granted the relief to the Plaintiff of Temporary Injunction. Court placed reliance on various decision supplied by the Plaintiff and the defendants and by which it was made clear that the courts have power to pass pre-publication or pre-broadcasting injunctions if the court is satisfied that interest of justice so requires. The court relied on the case of Reliance Petrochemicals Ltd. vs. Proprietors of Indian Express Newspapers, Bombay Pvt. Ltd. and Ors. (1) in which, “The Supreme Court ordered restraint on publication. Needless to add that after the time for subscription to the debentures had closed and the imminent danger to the subscription subsided, the Supreme Court held that continuance of the injunction is no longer necessary. The Supreme Court applied the test of real and imminent danger in order to infer as to whether the proposed publication would lead to an interference in the course of justice for the purpose of grant or non-grant of interim injunction of prior restraint against publication.”

The court also analysed the issue of the facts and circumstances under which it should issue the grant of an injunction also that the court holds the power to restrain publication in media if it arrives at a finding that the publication may result in interference with the administration of justice or against the principle of fair trial or open justice. Reliance was also placed on the case of Swatanter Kumar vs. The Indian Express Ltd. & Ors. (2) Wherein certain important deductions were made in law that were important in passing of a order in the case. They were as, “It is clear that it is the question of degree of prejudice and its nexus with fetching the fair justice or open justice which is a potent factor which is required to be examined and tested by the Courts at the time of passing of the injunction restraining or postponing the publication. The line between fairness and unfairness is sometimes blurred but if the same is likely to prejudice the accused and project him as culprit which may cause irreversible damage to a person, the Court can step in and assume jurisdiction for future prevention of such damage so that the administration of the justice is not impaired.” 

As the present matter was at the stage of preliminary enquiry by the police. The question was whether it will be appropriate for the Court to grant stay on publication at this preliminary stage. Do the powers of the court encompass within its sweep, the power to pass an injunction or prior restraint before or after a FIR is registered and before the court commences trial. Reliance was placed on the case of Sidhartha Vashisht vs. State (NCT of Delhi) (3), and the court appreciated the ruling i.e. “Presumption of innocence of an accused is a legal presumption and should not be destroyed at the very threshold through the process of media trial and that too when the investigation is pending. In that event, it will be opposed to the very basic rule of law and would impinge upon the protection granted to an accused under Article 21 of the Constitution. In the present case, various articles in the print media had appeared even during the pendency of the matter before the High Court which again gave rise to unnecessary controversies and apparently, had an effect of interfering with the administration of criminal justice. We would certainly caution all modes of media to extend their cooperation to ensure fair investigation, trial, defence of accused and non interference in the administration of justice in matters sub-judice.”

The judgements supplied by the defendants before the court were not appreciated by the court and it was held by the court that the allegations made by the reporters of Defendant No. 1 against Plaintiff No. 1 were not per se defamatory. It was further held by the court that a pure blanket pre-telecast restraint order cannot be passed. The balance of convenience has also been a feature that has been focused by this court. The Court accepts the test of imminent and present danger on the basis of balance of convenience but on the other hand states that no formula or test has been laid down to determine how the danger should be judged in case of prevention by injunction of broadcasting in a pending trail. 

Any publication which gives excessive adverse publicity to an accused or which is likely to hamper fair trial and constitutes an interference with the course of justice could be a ground for grant of injunction. The court has ample inherent power to restrain publication in media in the event it arrives at a finding that the said publication may result in interference with the administration of justice or would be against the principle of fair trial or open justice.

Conclusion

In the present case, the court held that the balance of convenience is in favour of the plaintiff and publication or broadcasting of anything would cause Serious prejudice to the plaintiff if injunction is not granted. Accordingly, the Hon’ble court restrained the Defendants 1 and 2, by an order of injunction from publishing any article or right-ups or telecasting programmes on the allegations against the Plaintiff as made by Mrs. ABC either in the complaint or before the police, till the time the police completes its enquiry and, if necessary, investigation and files an appropriate report/document before the court. The order of injunction which is passed is of a temporary nature and is applicable only till the police completes its preliminary enquiry or any other investigation if required that may be done at a later stage. However, the defendants are free to report to the court the final conclusion of the police in the course of preliminary enquiry covered under the ambit of fair reporting on the basis of true, correct and verified information. 

(1) AIR 1989 SC 190
(2) 2014 (207) DLT 221
(3) AIR 2010 SC 2352 India

The Transgender Persons (Protection Of Rights) Act, 2019
Legislations

The Transgender Persons (Protection Of Rights) Act, 2019

This Act came into force with the objective for prohibiting the discrimination against transgender persons and to establish a mechanism for social, economic and educational empowerment for transgender persons in India. The act has nevertheless attracted a lot of criticism. This Article aims to delineate the major arguments both for and against the provisions of this Act. 

The Transgender Persons (Protection of Rights) Act, 2019 (hereinafter referred to as the ‘Act’) was first introduced as a bill by Thawar Chand Gehlot, Minister of Social Justice and Empowerment, and was passed by both houses without any amendments. The process was initiated when in 2013, the government set up an expert committee to study the problems faced by transgenders and recommend solutions for the same. The committee set up a welfare board in Tamil Nadu. In 2014, a private member bill, The Transgendered Persons, was introduced in the Rajya Sabha, by Tiruchi Siva, a Member of Parliament from Tamil Nadu. The bill was passed in Rajya Sabha but not in the Lok Sabha.  In 2016, the government introduced another bill in the Lok Sabha and it was referred to a Standing Committee which made a number of recommendations but the bill lapsed. The 2019 Act preceded the Transgender Persons (Protection of Rights) Bill, 2018.

The Legislation of 2019 defined a transgender person as “a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta” (1). The Act prohibited discrimination against a transgender person. It also promises to provide health care facilities of different types the transgender community.

Despite the efforts of the Legislature, this legislation received a lot of criticism which led to mass retaliation across the different parts of the nation. The legislation was meant to be a consequence of the directions of the Supreme Court of India given in the landmark judgment of National Legal Services Authority v Union of India (2), which gave transgender persons the right to “self-identification” as male, female or transgender and gender reservations in educational institutions as well as public employment, but it failed miserably. One of the gender-rights activist, Harish Iyer, called the Act “regressive”. It was noticed by some that the legislation was rather made in haste because the 17th Lok Sabha’s monsoon session ended on August 6, 2019, and worked only for 281 hours in 37 days, during which they passed 35 bills. On average, a bill was passed in every eight hours, which clearly showed the seriousness with which the law was made.

Let us know discuss the strengths and weaknesses of The Transgender Persons (Protection of Rights) Act, 2019.

Strengths

  • As mentioned in Section 3 of the Act, it prohibits discrimination against a transgender person at various places and situations.
  • Under Section 12 of the Act, every transgender person shall have a right to reside and be included in his household. If the immediate family is unable to care for the transgender person, the person will be sent to a rehabilitation centre, on the orders of a competent court.
  • Under Section 3(i) of the Act, it is mentioned that no government or private entity can discriminate against a transgender person in employment matters, including recruitment, and promotion. 
  • Section 13 of the Act says that educational institutions funded or recognized by the relevant government shall provide inclusive education, sports and recreational facilities for transgender persons, without discrimination. 
  • Section 15 of the Act, says that the government must take steps to provide healthcare facilities to transgender persons including separate HIV surveillance centres, and sex reassignment surgeries. 
  • Section 6(1) of the Act says that a transgender person may make an application to the District Magistrate for a certificate of identity, indicating the gender as ‘transgender’.  A revised certificate of identity may be obtained only if the individual undergoes surgery to change their gender either as a male or a female. 
  • Section 8 states that the relevant government will take measures to ensure the full inclusion and participation of transgender persons in society. The state will take steps for their rescue and rehabilitation, vocational training and self-employment, create schemes that are transgender sensitive, and promote their participation in cultural activities. 
  • Section 18 of the Act recognizes the offences against transgender persons of forced or bonded labour (excluding compulsory government service for public purposes), denial of use of public places, removal from household, and village, physical, sexual, verbal, emotional or economic abuse.  Penalties for these offences vary from six months to two years, and a fine.
  • Section 16 of the Act mentions that the Central Government will constitute a National Council for Transgender Persons which will advise as well as monitor the effect of the different policies and legislations of the government on the transgender persons. The NCT will consist of Union Minister for Social Justice (Chairperson), Minister of State for Social Justice (Vice-Chairperson), Secretary of the Ministry of Social Justice, one representative from ministries including Health, Home Affairs, and Human Resources Development.  Other members include representatives of the NITI Aayog and the National Human Rights Commission.  State governments will also be represented.  The Council will also consist of five members from the transgender community (by rotation) and five experts from non-governmental organisations.

Weaknesses

  • The Act does not allow complete self-perception of gender identity based on the 2014 Supreme Court judgment as the certificate of gender identity is given by the District Magistrate only after examining the medical reports.
  • The Act continues to mandate sex reassignment surgeries for transgender persons and gives emphasis on binary gender identity.
  • The Act sets a lighter sentence for several criminal offences in comparison to those mentioned in the Indian Penal Code for the cis-gender, which is a minimum of 7 years. It also does not clearly define the offences against the transgender persons. 
  • There was no mention of an effective mechanism to enforce legally, the prohibition of discrimination.
  • If a transgender person wants to leave his/her home because of the non-acceptance of his/her fluid sexuality, they can no longer join the trans-community. They must instead go to court first which will send them to a ”rehabilitation centre”. This shows that the legislation makers, still considers homosexuality, non-binary gender as a disorder.
  • Medical assistance needed for the gender prescription shows that though the legislation does not mention a single word about “Screening Committee”, but it still exists in the background.
  • Total absence of discussion about “trans men” (female to male transgender). There is no mention of the facilities and help required by transmen. The Act strongly focuses on hijras and transwoman and not on trans men, intersex persons, and genderqueer.
  • The legislation completely ignores the need for reservation in public sector jobs and educational institutions for the transgender persons, unlike that given to the other socially and economically backward classes of the society.
  • It does not discuss the issue of bullying which is a very common issue for the community and is faced often.
  • The act criminalized begging. It also doesn’t talk about the traditions of the transgender community which includes badhai and neik.
  • It does not talk about inheritance.

After discussing the strengths and weaknesses of the legislation, some of the suggestions that can be put forward for improving it are:

  • Inclusion of reservations at different stages for the transgender community.
  • Inclusion of the community in making the bill.
  • Inclusion of traditions of the community.
  • Focusing of non-binary in gender rather than transwomen and hijras.

Ever since the legislation has come into force, it has received severe criticism. Authoritative organizations like Human Rights Watch and International Commission of Jurists have also criticized it. The Act has been a regressive one which at very least grants gender identity and equal rights to the community in India. A petition was filed by advocate and transgender rights activist, Swati Bidhan Baruah, in the Supreme Court challenging the constitutionality of the 2019 legislation. We have yet to see what the court decides. The only and most recent development with regards to The Transgender Persons (Protection of Rights) Act, 2019, took place on April 20, 2020, when the Central Government directed all the departments of the central government to include ‘transgender’ as a separate category for recruitment in civil services and other posts.

(1) The Transgender Persons (Protection of Rights) Act, 2019, Section 2(k)
(2) AIR 2014 SC 1863

Case Reviews

CIT V. Hariprasad Bhojnagarwala (2012) 342 ITR 69

This case is based upon the applicability of deductions under Section 23(2) of the Income Tax Act, 1961 on Hindu Undivided Family.

Background

The instant case (1) was a reference proceeding under the Income Tax Act, 1961 [hereinafter referred as ITA’] which was referred to the Full Bench of the Gujarat High Court, presided by Hon’ble Chief Justice Mr. S.J. Mukhopadhaya, Hon’ble Mr. Justice Akil Kureshi and Hon’ble Ms. Justice Harsha Devani. The said case was is fact first referred to the Division Bench of the Gujarat High Court [hereinafter referred as ‘HC’] but having convinced that the case involves a substantial question of law and deserves to be heard by a Full Bench, the Division Bench referred the matter to the Full Bench of the Gujarat HC. The question herein pertained to the applicability of deduction under Section 23(2) of the ITA (2) to a Hindu Undivided Family [hereinafter referred as HUF’]. 

Relevant Facts 

  1. The assessee in the present matter was an HUF which derived certain income from house property. Furthermore, at the time of filing of the Income Tax return the assessee made a claim of deduction under Section 23(2) of the ITA but the same was rejected by the Ld. Income Tax Assistant Commissioner who took a view that deduction under the said section can only be granted to an individual natural person. 
  2. Thereafter, the assessee preferred an appeal before the Ld. Commissioner of Income Tax [hereinafter referred as CIT’] but the Ld. CIT also rejected the claim of the assessee on the same grounds as applied by the Ld. Income Tax Assistant Commissioner. 
  3. In further appeal, the assessee approached the Hon’ble Income Tax Appellate Tribunal, which relying upon various precedents concluded that deduction under section 23(2) can also be availed by an HUF. 
  4. Accordingly, the instant case was referred to the Division Bench of the Gujarat HC under Section 256 of the ITA by the CIT, which further referred the matter to the Full Bench of the Gujarat HC. 

Issues Addressed

  • Whether the benefit of deduction under Section 23(2) of the ITA can be availed by an HUF?
  • Whether an HUF can be held to be a fictional entity?

Rules Applicable 

  1. Section 23 of the ITA
  2. Section 7 of the Wealth Tax Act, 1957 (3)
  3. Section 13 of the General Clauses Act, 1957 (4)
  4. Section 256 of the ITA

Analysis 

[Issue i] Whether the benefit of deduction under Section 23(2) of the ITA can be availed by an HUF?

It is submitted that for the purposes of claim of deduction under section 23(2) of the ITA, there are two essentials which shall be fulfilled by the assessee: 

  1. The assessee must be in self-occupation of the property; and
  2. The assessee must be a natural person. 

The entire facet of deduction under Section 23(2) is based on the central premise that the property of the assessee must be self-occupied and it must

not be used for purposes other than residence. Accordingly, the intent of the legislature is clear that it wants to provide the benefit of deduction from annual value of property only in cases where the use of the property is for residential purposes only. Reference can be made to the relevant provision of the ITA which states as follow:

“23. Annual value how determined. – 

(2) Where the property consists of a house or part of a house which 

(a) is in the occupation of the owner for the purposes of his own residence; or 

(b) cannot actually be occupied by the owner by reason of the fact that owing to his employment, business or profession carried on at any other place, he has to reside at that other place in a building not belonging to him, 

the annual value of such house or part of the house shall be taken to be nil.”

The use of the term owner in the aforesaid section of the ITA has been particularly a moot question and different HC(s) have expressed their opinions on the said term. For instance, the case of CIT v. Mohammad Tyamboo (5), wherein the Hon’ble Jammu and Kashmir HC held that the term owner under section 23(2) essentially refers to a natural person or in other words an individual and the benefit of deduction under the said section cannot accordingly be availed by a partnership firm. 

Similarly, in the case of CIT, Delhi v. Dewan Chand Dholan Dass (6), it was propounded by the Hon’ble Delhi HC that the nature of relief under Section 23(2) is available only to an assessable entity and not by a company or a partnership firm which constitute different individual assessable entities. 

For the purposes of availment of benefit under Section 23(2) of the ITA by an HUF reliance can also be placed upon the provision of section 7(4) of the Wealth Tax Act, 1957 which was similar in application and interpretation to the section 23(2) of the ITA. The Gujarat HC while interpreting the applicability of the said section on an HUF held that HUF can own as well as reside in a property and accordingly can avail the benefit of deduction under Section 7(4) of the Wealth Tax Act, 1957. (7)

Moreover, the provision of Section 13 of the General Clauses Act, 1897 also holds special importance for the purpose of delineating the scope of deduction under Section 23(2) of the ITA. It states that: 

“13. Gender and number: In all Central Acts and Regulations, unless there is anything repugnant in the subject or context, 

(1) words importing the masculine gender shall be taken to include females; and

(2) words in the singular shall include the plural, and vice versa.”

Keeping in view the aforesaid, it is submitted that the interpretation of the term owner under Section 23(2) of the ITA shall accordingly include owners for the purpose of claim of deduction made thereof and an HUF can also be brought within the ambit of the said section. 

[Issue II] Whether an HUF can be held to be a fictional entity?

It is submitted that an HUF from the jurisprudential point of view is essentially a group of individuals as distinct partnership firms or a company who come together in order to function as a group for common economic benefits. An HUF being a person for the purposes of ITA and headed by a Karta cannot be treated as a legal fiction in stricto sensu as it is essentially a group of individuals who either connected by blood or through some other means and accordingly can avail deduction under Section 23(2) of the ITA. 

Similar Case Law  

  1. Income Tax Officer v. Tarlock Singh and Sons (8)

The instant case was an appeal filed by the Revenue Department before the Income Tax Appellate Tribunal [hereinafter referred as ITAT’] under Section 253 of the ITA. The appeal concerned the question of law as to whether deduction under section 23(2) can be claimed by an HUF. The Hon’ble ITAT after hearing both the parties concluded that deduction under Section 23(2) can be availed by a natural person who can physically occupy a premise. Further, the ITAT also observed Karta who is the representative of an HUF is also a natural person who can reside in a premise and accordingly the benefit of deduction can also be availed by an  HUF and the words ‘in occupation of the owner for the purposes of his own residence’ also includes an HUF. 

Conclusion 

It is concluded that the approach followed by the Hon’ble Gujarat High Court in the instant matter is plausibly good in law as it protects the interests of an HUF and gives due regard to the intention of the legislature as to provide benefit of deduction under Section 23(2) to an HUF. A literal interpretation of the words ‘in occupation of the owner’ as used under Section 23(2) would however have led to a flawed conclusion to the detriment of an HUF for the availment of deduction in case of self-occupied property. 

Additionally, the reasoning of the court while taking into account the jurisprudence of the existence of HUF is another plausible aspect of the judgement as it clearly distinguishes an HUF from other entities such as a partnership firm and a company which are fictional entities and cannot be allowed to claim deduction under Section 23(2) of the ITA due to the want of the requirement of self-occupation as mandated by the legislature for the purposes of deduction under section 23(2) of the ITA.  

(1) In Re: Commissioner of Income Tax v. Hariprasad Bhojnagarwala, Appeal No. 174 of 1995 (Guj. HC).
(2) § 23(2), The Income Tax Act, No. 43 of 1961, India Code (1961).
(3)  § 7, The Wealth Tax Act, No. 27 of 1957, India Code (1957).
(4)  § 13, The General Clauses Act, No. 10 of 1897, India Code (1897).
(5) Commissioner of Income Tax v. Mohd. Amin Tyamboo, 125 ITR 375.
(6) Commissioner of Income Tax, Delhi v. Dewan Chand Dholan Dass, 132 ITR 790.
(7) Commissioner of Wealth Tax v. Ashok Raje Gaekwad, 276 ITR 54.
(8) Income Tax Officer v. Tarlock Singh & Sons, 1989 29 ITD 139 (Delhi).


epidemic diseases act 1897
Legislations

The Epidemic Diseases Act, 1897

With an ill-drafted, four-section Act on Epidemics, is the Indian Legal framework ready to deal with a Pandemic?

The Epidemic Diseases Act, 1897 (hereinafter referred as the ‘Act’) of India is a law of colonial vintage. In the year 1896, Bombay was struck by a devastating Bubonic plague. It was transmitted through bacteria and very little was known about the disease or where it came from. To tackle such an untraceable disease and to restrict the movement and mass gathering of people so that its spread can be regulated, the British Government enacted this Act on 4th February 1897. 

By exercising the powers provisioned under the Act, the colonial authorities searched the suspected plague cases in homes of the public and among passengers by segregations, evacuations and also by demolitions of the places which were infected.

The preamble of the Act states that it is enacted “for the better prevention of the spread of dangerous epidemic diseases”.

The Act consists of total four sections. 

Section 2– It empowers the State Governments and Union Territories to take special measures and formulate regulations to prevent the outbreak of the dangerous epidemic disease if it satisfied that the State or any part thereof is threatened with the outbreak of such disease.

  • If the State Government is satisfied that the ordinary provisions of the law are insufficient for the time being to contain the outbreak of the disease, it may take or empower any person to take such measure or temporary regulations, by public notice, which shall be observed by the public to prevent the outbreak.
  • The State Government may also determine that in what manner and by whom the expenses incurred would be defrayed, if any.
  • It may also prescribe regulations, without prejudice, for inspection of persons travelling by railway or otherwise and the segregation of suspected persons, of being infected with such disease, by the inspecting officer in hospitals or temporary accommodations.

Section 2A- It empowers the Central Government to prescribe regulations for the inspection of any ship or vessel which leaves or arrives at any port in India and the detention of such person as necessary to prevent the outbreak.

Section 3- This provision provides for penalties to such persons who disobeys any regulation or order as made under this Act. Such person shall be deemed to commit an offence under Section 188 of the Indian Penal Code, 1860 i.e. Disobedience to order duly promulgated by public servant.

Section 4- It provides legal protection to the implementing officers acting under this act from any suit or legal proceeding.

This Act was designed to merely put government machineries into action upon a considerable threat of an epidemic disease and not a code for establishing the roles and responsibilities of general public health systems.

The act was described as “one of the most draconian pieces of sanitary legislation ever adopted in colonial India” by David Arnold because it provides for physical examination and detention of the suspects, destruction of infected properties and banning of public gatherings for any purpose including even religious purposes.

Historian Pandurang Balkawade said- “To control the spread of the disease, special powers were needed and the British rulers enacted the law giving extraordinary powers to officials…..the way British officers and soldiers implemented the Act was brutal and inhuman at times”.

A strong backing of legislation is required to deal effectively with the epidemic currently being faced by the nation. The executive orders lack adequate powers which the legislation is imbibed with. Where other countries have detailed legislations to deal with the outbreak of such dangerous diseases, India only has a four-section ambiguous legislation.

For instance, England has the “Public Health (Control of Disease) Act, 1984”. It has specific delineated roles for authorities to prevent the diseases. This Act provides for notification of an infectious disease, responsibilities of healthcare workers in identifying the contagious individuals and a clear hierarchical chain in which the identification has to be reported. It provides for measures to be taken, responsibilities of local authorities and national authorities, the pre-planned format of operation of the responding authorities, etc. These provisions reduce the scope of confusion and jurisdictional issues at the time of crisis.

Another example is “The Public Health Services Act, 1944” of the United States. It provides for an administrative structure through which the public health emergency shall be dealt with. It mentions clear separation of the roles and responsibilities of the Centre and States. Further, the Act very-well anticipates the need for additional manpower during a nationwide epidemic by creating a reserve corps to supplement the commissioned corps on a short notice.

To start with the defects in The Epidemic Diseases Act of India, it even fails to define when and how a disease shall be declared as an epidemic. As far as an epidemic is considered, India’s one-page, four-section act is incapable of providing any adequate legislative backing to even a minor public health emergency. Instead of anticipating and pre-planning the administrative framework, the Act leaves all the power and responsibilities with the State Governments to make regulations and take measures. There should be a strong and systematic procedure in the Act, so that the immediate measures could be taken rather than delaying the process by the States struggling to come up with administrative and health protocols on the fly whilst in the midst of a crisis. This would result in every State differing in its strategy and may even result in abuse of power. There is no provision that the local or state level health or other authorities may follow in case of an emergency. The Epidemic Diseases Act of India is a pre-independence act and therefore fails to provide for any clarity upon the responsibility of different states and the union upon controlling of the nationwide epidemic.

However, many Constitution experts say that if the government is satisfied that these laws are good enough to fit in the existing circumstances, then there is nothing wrong. There are many colonial-era laws that are retained by the government like Indian Penal Code, Famine Act, etc. If it believes that a colonial-era would help in containing the outbreak of the epidemic then it is for the government to decide on the relevance of this law.

At present, the rising cases of COVID-19 in India have led to nationwide lockdown creating a panic among people of the nation. The government can learn from the past and current scenarios, and make an effective legislation in the interest of public health security to fight against the outbreak of any dangerous disease. It shall lay down the administrative structure clearly by setting out the powers and responsibilities of the authorities at the local level right up to the national level. The law shall be comprehensive, strong and humane, also keeping in mind the liberty, privacy and dignity of the patients.

1 2 29 30 31 32
About Exponent

Exponent is a modern business theme, that lets you build stunning high performance websites using a fully visual interface. Start with any of the demos below or build one on your own.

Get Started
Instagram

[instagram-feed]

Privacy Settings
We use cookies to enhance your experience while using our website. If you are using our Services via a browser you can restrict, block or remove cookies through your web browser settings. We also use content and scripts from third parties that may use tracking technologies. You can selectively provide your consent below to allow such third party embeds. For complete information about the cookies we use, data we collect and how we process them, please check our Privacy Policy
Youtube
Consent to display content from Youtube
Vimeo
Consent to display content from Vimeo
Google Maps
Consent to display content from Google
Spotify
Consent to display content from Spotify
Sound Cloud
Consent to display content from Sound
Generic selectors
Exact matches only
Search in title
Search in content
Search in posts
Search in pages