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Posted 19-Jan-17 18:51 PM

The Arms Act, 1959 replaced the British-era Indian Arms Act, 1878 that was an act regulating the manufacture, sale, possession, and carry of firearms. The Act was passed to consolidate and amend the law relating to arms and ammunition in order to curb illegal weapons and violence stemming from them. It defines a specific class of ‘prohibited’ arms and ammunitions, restricts their use and prescribes penalties for contravention of its provisions.

Significant pointers:

  • Section 7 of the Act forbids the manufacture, sale, and use of prohibited arms and ammunition unless it has been specially authorised by the central government.
  • Section 27(3) prescribes that any contravention of Section 7 that results in the death of any person ‘shall be punishable with death’.
  • Section 27(3) of the Act was challenged in the Supreme Court in 2006 in State of Punjab vs. Dalbir Singh. Citing previous judgements (Mithu vs. State of Punjab, 1983), the death penalty was not awarded. 
  • Under Article 13 of the Constitution, laws inconsistent with the Constitution shall be null and void.  Therefore, Section 27(3) of the Arms Act, 1959 shall now stand amended as it violates Article 14 (Equality before law) and Article 21 (Protection of life and personal liberty) of the Constitution. Courts shall have the discretion to impose a lesser sentence.
  • When the law was first enacted, Section 27 provided that possession of any arms or ammunition with intent to use the same for any unlawful purpose shall be punishable with imprisonment up to seven years and/ or a fine.
  • This section was amended in 1988 to provide for enhanced punishments in the context of escalating terrorist and anti-national activities.  In particular, section 27(3) was inserted to provide for mandatory death penalty.
... Read More

Posted 17-Jan-17 17:58 PM

Election Commission of India's Model Code of Conduct is a set of guidelines issued for conduct of political parties and candidates during elections mainly with respect to speeches, polling day, polling booths, election manifestos, processions and general conduct. As a responsible citizen, every voter has the right to file a complaint with the EC if the code is violated.

The major pointers are:

  1. Government bodies are not to participate in any recruitment process during the electoral process.
  2. The contesting candidates and their campaigners must respect the home life of their rivals and should not disturb them by holding road shows or demonstrations in front of their houses. The code tells the candidates to keep it.
  3. The election campaign rallies and road shows must not hinder the road traffic.
  4. Candidates are asked to refrain from distributing liquor to voters. It is a widely known fact in India that during election campaigning, liquor may be distributed to the voters.
  5. The election code in force hinders the government or ruling party leaders from launching new welfare programmes like construction of roads, provision of drinking water facilities etc. or any ribbon-cutting ceremonies.
  6. The code instructs that public spaces like meeting grounds, helipads, government guest houses and bungalows should be equally shared among the contesting candidates. These public spaces should not be monopolised by a few candidates.
  7. On polling day, all party candidates should cooperate with the poll-duty officials at the voting booths for an orderly voting process. Candidates should not display their election symbols near and around the poll booths on the polling day. No one should enter the booths without a valid pass from the Election Commission.
  8. There will be poll observers to whom any complaints can be reported or submitted.
  9. The ruling party should not use its seat of power for the campaign purposes.
  10. The ruling party ministers should not make any ad-hoc appointment of officials, which may influence the voters in favour of the party in power.
  11. Before using loud speakers during their poll campaigning, candidates and political parties must obtain permission or license from the local authorities. The candidates should inform the local police for conducting election rallies to enable the police authorities to make required security arrangements.

The detailed MCC can be found in the EC website here.

Significant Observations:

  1. Recently, during State elections, the EC hadn't raised objections to populist announcements by the Central government reasoning that the government machinery needn't be halted due to elections in a particular state.
  2. The EC has recently decreed that all state government advertisements with the presence of the ruling party leaders must be taken down or covered in order to prevent it from influencing the voters. Although parties can put out hoardings, state sponsored advertisements shouldn't act as canvassing material.
  3. The above decree has led to regional parties demanding the removal central government advertisements as well.
  4. The recent Supreme Court order banning parties from seeking votes in the name of religion is a new caveat in the MCC for the upcoming state elections. The compliance of the same during these elections will set the stage for future polling.
... Read More

Posted 16-Jan-17 15:11 PM

Father's name is different in property document and different in my documents

Sir,I would like to know that my father name is mentioned in every where even in family property " Rana sing" but in my all document mentioned "Jaipal singh" Now may father is alive so in future is any problem will occur due to this and what can I do about this - Shri Kumar

Your dad needs to prove that he has continued to be known by two names in India. The process for name change is outlined here : http://www.ruly.in/free-Legal-Advice/How-can-a-person-get-their-name-changed-in-India---name/386

But he doesn't need to change his name. You can get a same name affidavit drafted, through a process same as stated in the above question. A person having two different names, rather two different variations of the same name, is culturally common (esp wrt middle name) in India. However, in your case, since the two names are quite different, the notarizing officer might require you to produce relevant documents etc proving your dad's identity. 

I hope that the lawyers here would weigh in on this answer

... Read More

Posted 14-Jan-17 17:39 PM

What does 'triple talaq' imply in a court of law? #divorce #talaq

Does it need to be said before a Kazi/masjid or can the husband say it anywhere for it to be a valid divorce as per muslim law?

Divorce in Islam involves the pronouncement by husband 'talaq' (arabic for divorce) to his wife orally or written anywhere. If pronounced thrice (triple talaq), the divorce is permanent and the husband and wife cannot remarry without certain conditions being met (the wife getting re-married with someone and divorced again). A single pronouncement is sufficient to suspend the marriage, but after this the husband can cancel divorce within iddah (3 monthly periods(of the wife) or until the end of pregnancy).

A wife cannot initiate the divorce unless her husband agrees to it or she wins the approval of a qadi (majistrate / judge of a Shariah court), who can divorce the marriage or divorce the couple.

The Muslim Personal Law or the Shariah Law applies to followers of Islam in India with respect to matters of family and marriage. 

After divorce, Quran specifies responsibilities regarding child maintenance in 223rd verse of Second Chapter. Quran also prohibits interventions from the previous husband in the divorced woman's life in 232nd verse of second chapter. 

In Islam, a mahr is a mandatory payment, in the form of money or possessions paid or promised to pay by the groom, or by groom's father, to the bride at the time of marriage, that legally becomes her property. After divorce, based on the length of the marriage, carnal life of the couple, children and who initiates divorce (husband or wife), the wife is entitled to get either full or half mahr or nill sometimes. However, unlike most Western laws where the couple split assets earned during the marriage, Islamic law does not entitle the wife to a split of the husband's assets at divorce.

The All India Muslim Women Personal Law Board (AIMWPLB) has filed a petition in the Supreme Court seeking a ban on the practices of triple talaq, polygamy and nikah halala.

... Read More

Posted 13-Jan-17 14:44 PM

The Supreme Court of India banned Jallikattu and bull race in Maharastra in the year 2014 citing Prevention of Cruelty to Animals Act-1960, which prohibits the use of animals for entertainment or display. 

Background:

Animal activists and PETA India have protested against the practice since 2004. In 2009, the Tamil Nadu government passed the Tamil Nadu Regulation of Jallikattu Act of 2009 - a state law that allowed Jallikattu under some conditions. In 2011, the environment ministry passed an order that declared sports involving animals like Jallikattu illegal.

In 2014, the Supreme Court struck down the Tamil Nadu Regulation of Jallikattu Act of 2009 stating that it violates the national law. “Even bulls have rights against torture,” the court had said. The court also upheld the 2011 environment ministry order. The court order was based on a report by the Animal Welfare Board of India, which found that bulls were bitten, stabbed and pulled by the tail during the taming sport. “Being dumb and helpless, they suffer in silence. We notice that the situation is the same in Maharashtra too,” the court said.

Recent Developments

On 7 January, 2016, the Government of India issued a notification that had re-introduced bulls into the fold of 'performing animals' under the Prevention of Cruelty to Animals Act of 1960, thus giving an indirect nod to jallikattu, which the court had described as an act of "inherent cruelty". However, on 14 January, 2016, the Supreme Court of India upheld its ban on the event, leading to protests all over Tamil Nadu. On November 16, 2016, the Bench dismissed the State government's review petition against the 2014 judgment, saying the very act of "taming a bull" was counter to the concept of welfare of the animal under the 1960 Act.

After the apex court passed its order, several high courts also banned animal sacrifice and sports across the states. Allowing Jallikattu would have spurred other courts – from Punjab and Uttar Pradesh to Uttarakhand, Himachal Pradesh, Assam and Maharashtra – to allow cruelty to animals in the name of tradition.

With the onset of Pongal (the harvest festival in Tamil Nadu - mid-january 2017), the jallikattu issue has again propped up in the mainstream. While the Central government has declined to pass an ordinance to allow Jallikattu, and the SC refusing to rush the judgement on the January 2016 central government notification there is open defiance in some districts in Tamil Nadu where Jallikattu is organised over the Pongal weekend (14-16).

... Read More

Posted 13-Jan-17 09:55 AM

Can i be prosecuted for a 4 year old tax return ?

I have realized that there were mistakes in my tax return filed a couple of years back in 2011. Can I be prosecuted for it in 2017 or later?

As per the new Income Tax laws, you can submit a revised return within one year from the end of the financial year in which you had submitted your original return provided that you had submitted a return (even if incorrect) by the due date in that financial year. So if you submitted your IT return by the 31st of July 2016, you have till the 31st of March 2017 to file a revised return for the year 2015-2016 ( Assessment year 2016-2017). 

Since your query is for an incorrect (presumably understated) return filed more than a year back, you cannot file a revised return without penalty. You can, of course, do nothing about it and hope that your case doesn't come up for scrutiny of past returns.

The IT department carries out assessments of all IT returns filed. And the possible outcomes of each of the assessments are slightly different

  1. Under 143(1) : All IT returns are subject to this and is like preliminary checking of the return of income. The income tax payee is informed of any incorrections in his/her return and he/she may contest it or adjust the return filed. Corrections are for deductions claimed, arithmetical errors, losses/expenditure claimed etc. It must be understood that this assessment is undertaken for all IT returns. The department can take upto 12 months to make this assessment though they do this much faster these days esp for salaried people
  2. Under 143(3): This is the dreaded scrutiny assessment though if your accounts are in order, you shouldn't worry. At this stage, a detailed scrutiny of the return of income will be carried out. The scrutiny is carried out to confirm the correctness and genuineness of various claims, deductions, etc., made by the taxpayer in the return of income. It is primarily to ensure that the income has not been understated or the tax has not been underpaid. The assessing officer shall serve a notice within a period of six months from the end of the financial year in which the return is filed. The IT payer is expected to be present in front of officer and provide all supporting documentation to substantiate his/her calculation of income and tax. Basis this scrutiny, the payer may be asked to pay the deficit tax or might even get a refund. The assessment needs to be made within 21 months from the end of the relevant assessment year (Remember assessment year is the 1 year following the financial year)
  3. Under 144: If the income tax payer doesn't comply with directions issued by the Assessing officer, he/she may be subjected to scrutiny under section 144. Assessment under section 144 shall be made within a period of 21 months from end of the assessment year in which income was first assessable
  4. Under 147: This assessment is carried if the Assessing officer believes that some income has completely escaped assessment. This could be due to under reported income, over stating losses/ depreciation or allowances, not reporting foreign assets etc. Assessment under this section shall be made within a period of 9 months from the end of the financial year in which notice under sector 148 is served on the taxpayer.

Would refer you to the Income Tax department's website for this matter: http://www.incometaxindia.gov.in/Pages/faqs.aspx . You should find a lot of your income tax related queries answered there. 

... Read More

Posted 13-Jan-17 09:45 AM

Are there different laws for commercial and residential leasing? #property #rent

A friend suggested that I shouldn't let my house on rent for a period more than 11 months via agreement as it would come under strict rental laws which could affect me in future. So I have been renewing 11 months contract if required. Now I want to rent out a commercial space. How should I go about it? I would also need help in drafting the contract. The property is in TamilNadu.

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