supremoamicus.org€¦ · supremo amicus volume 19 issn: 2456-9704

SUPREMO AMICUS

VOLUME 19 ISSN: 2456-9704

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www.supremoamicus.org

SUPREMO AMICUS

ISSN 2456-9704

PIF 6.242 _____________________________________________________________________________

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VOLUME 19

AUGUST, 2020

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EDITORIAL TEAM

Editor-in-chief

Birinder Singh

(Advocate, Punjab & Haryana High Court)

Co-Editor-in-chief

Prateek Mahajan


Managing Editor

Ivan Khosa


Senior Editor

Praduman Garg | Shivali Garg | Malkiat Singh Hundal

Advocate | Advocate | Advocate

P&H High Court | P&H High Court | P&H High Court

International Advisory from Other Streams

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Student Editors (2018-2019)

Pooja Kapur | Gaurav Hooda | Sarthak Makkar | Rekha Kumari

Amity Law School | Army Institute of | Gujarat National | Dept of Laws

Amity University Law, Mohali Law University Bhagat Phool

Singh Noida Gandhinagar Mahila Vishwa

Vidyalaya, Sonipat

Siddharth Baskar | Jatin Budhiraja | Pranav Kumar Kaushal | Kiffi Aggarwal

Amity University | Amity Law School | Bahra University | BPSMV, Sonipat

Noida Noida Shimla

Dixita | Mayank Vats | Leepakshi Rajpal | Adarsh Pandey

Banasthali Vidhyapith| Symbiosis Law | Symbiosis Law | City Academy Law

School, Hyderabad School, Hyderabad College, UP

Abhinav Verma | Maahi Mayuri

Campus Law Centre, Faculty of Law, | Bharati Vidyapeeth Deemed University,

University of Delhi Pune

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DISCLAIMER

No part of this publication may be reproduced or copied in any form by any means without

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expressed in this publication are purely personal opinions of the authors and do not reflect the

views of the Editorial Team of Supremo Amicus. Though all efforts are made to ensure the

accuracy and correctness of the information published, the Editorial Team or the Publisher of

Supremo Amicus shall not be responsible for any errors caused due to oversight or otherwise.

© Supremo Amicus, All Rights Reserved

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EDITORIAL

Supremo Amicus is an online peer reviewed international journal on law and science. The

journal seeks to provide comprehensive information on different aspects of legal and scientific

field. It focuses on the advancement in science and law and the various challenges which are

before us in these fields.

The main purpose of the journal is to encourage original research in these fields and to publish

outstanding articles. It aims at providing good quality readable material to its readers and to

spread knowledge in the area of science and law. The journal welcomes students, research

scholars, academicians, and practitioners to present their studies on various topics

acknowledged by this journal and also provide them a platform for publication of their works.

With this thought, we bring forth this journal before you.

TEAM

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TABLE OF CONTENTS

1. MENTAL HEALTH- NOT A PERSONAL FAILURE By Aanya Agarwal and Visheshta Kalra……………………………………………………….1

2. CYBERCRIME IS THE BANE OF THE INTERNET: IS INDIA READY? By Aarushi Chopra………………………………………………………………………….…7

3. ANALOGOUS SCRUTINY OF REAL ESTATE LAWS IN INDIA AND BRITAIN By Aditi Joshi and Tushar Kumrawat………………………………………………………...12

4. ANALYSIS OF JAMMU AND KASHMIR DOMICILE LAW By Aditya Hawaldar………………………………………………………………………….17

5. THE OFFENCE OF OBSCENITY UNDER THE INFORMATION TECHNOLOGY

ACT, 2000 AND THE INDIAN PENAL CODE

By Advaith Raj………………………………………………………………………………..26

6. POLICE BRUTALITY AND FAKE ENCOUNTERS: AN INSIGHT ON COLD- BLOODED MURDERS

By Afifa Siddiqui and Suryansha Shikhar Singh……………………………………………...31

7. CRUELTY: A VITAL GROUND FOR DIVORCE By Ajay Sharma………………………………………………………………………………45

8. JUST WAR THEORY AND THE RIGHT TO UNIVERSAL HEALTHCARE: ANALYSING THE INTERNATIONAL HUMATIARIAN LAW IN LIGHT OF

GLOBAL PANDEMICS

By Akash Krishnan, Kushagra Gahoi, Manpreet Chaudhary, Alluri Manoj Sai and Anav

Kotecha……………………………………………………………………………………….53

9. IMPORTANCE OF EDUCATION IN POLITICS

By Aksha Tarannum………………………………………………………………………….63

10. S.53A, TRANSFER OF PROPERTY ACT - A SWORD TO ITS OWN SHIELD? By Aman Mehta………………………………………………………………………………67

11. INSURABILITY OF E-COMMERCE RISKS. WHAT INDIA CAN LEARN FROM USA?

By Aman Sinha, Aishwarya Sinha and Swati Sundarraj…………………………………….73

12. ‘INFODEMIC – ANOTHER PANDEMIC TO FIGHT By Anagha Narasimha C N…………………………………………………………………...81

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13. CRIME AGAINST WOMEN & MEDIA AS AN AIDE By Ananya Gadre and Anubhav Wani………………………………………………………..86

14. CULPABLE HOMICIDE AND MURDER By Anshul Mittal……………………………………………………………………………...93

15. SECONDARY MARKET: ISSUES AND REGULATORY FRAMEWORK By Antra Pandit………………………………………………………………………………98

16. FILIAL RESPONSIBILITY LAW IN INDIA: A CRITICAL ANALYSIS OF THE EXISTING LAW AND ITS PROPOSED AMENDMENT

By Anup Menon V…………………………………………………………………………...109

17. GEOGRAPHICAL INDICATIONS FOR FOOD PRODUCTS WITH SPECIAL REFERENCE TO INDIA

By Apoorva Chandrachur and Shreya Chamaria…………………………………………...120

18. FORCE MAJEURE’ AND THE ‘PANDEMIC’: A COMPREHENSIVE ANALYSIS UNDER THE INDIAN CONTRACT LAW

By Arpinderdeep Singh……………………………………………………………………...126

19. CASE COMMENT ON STATE DELHI ADMINISTRATION VS SANJAY GANDHI 1978 CR. L952 (SC)

By Ayelita Ghosh……………………………………………………………………………140

20. CHILD RIGHTS AND PROTECTION: AN INTERDISCIPLINARY FIELD OF LAW By Ayushi Sharma…………………………………………………………………………..144

21. A CRITICAL ANALYSIS ON PREVENTIVE DETENTION IN INDIA By B. vamshidhar Reddy…………………………………………………………………...155

22. THE FEMALE SOLDIER: NEED TO INDUCT WOMEN INTO COMBAT ROLES IN THE INDIAN ARMY

By Bhavna Shri Harsha……………………………………………………………………..169

23. EVALUATION OF APPLICABILUTY OF JUDICIAL INTERVENTION IN ARBITRATION PROCEEDINGS: ARBITRATION AND CONCILIATION ACT, 1996

By Bhavya Goswami………………………………………………………………………...179

24. THE EXISTING LEGAL FRAMEWORK OF INTELLECTUAL PROPERTY AND 3D PRINTING

By G. Priyadarshini and Y. Princy Beula…………………………………………………...187

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25. CRITICAL ANALYSIS OF JUDICIAL DECISIONS ON RESERVATION IN PROMOTION

By Harshit Jain……………………………………………………………………………...198

26. MARRIAGE (CONSENT TO RAPE) By Harshit Jain……………………………………………………………………………...210

27. PRESERVING JUSTICE, CONSTITUTIONALITY AND HUMAN RIGHTS IN TIMES OF COVID-19

By Harshit Sankhla………………………………………………………………………….217

28. MARITAL RAPE: THE ACT OF TRAUMA ON BODY AND MIND By Hely Kikani………………………………………………………………………………226

29. TREATY OF LISBON AND ITS IMPACTS ON COMPETITION LAW By Hemangini Shekhawat…………………………………………………………………...230

30. WILDLIFE CONSERVATION INTENTIONS IN INDIA By I.Nisha Padmavathy……………………………………………………………………..236

31. CONTRIBUTION OF INDIAN MEDIA : ‘YESTERDAY AND TODAY’ By Janhavi and Ujjwal Lohat……………………………………………………………….241

32. INDIA: A FORM OF ASYMMETRICAL FEDERATION By Komal Agrawal and Priyansh Agarwal…………………………………………………249

33. RIGHT TO ABORTION: A LIBERTY OF RIGHT AND CHOICE By K.R. Azad………………………………………………………………………………...255

34. RIGHTS OF ARRESTED PERSON- A CONSTITUTIONAL AND LEGAL ANALYSIS By Kunal Garg………………………………………………………………………………265

35. ANTI-TORTURE LAW- A COMPELLING NEED FOR STANDALONE LEGISLATION IN INDIA

By M. Sri Nikila and G.S. Shri Gayathri…………………………………………………….271

36. DEMOCRACY SANS FREEDOM OF SPEECH AND EXPRESSION VIS Á VIS FREE PRESS: A STUDY OF INDIAN SCENARIO

By Mayank Singh……………………………………………………………………………279

37. IMPACT OF COVID 19 ON ARBITRATION PROCEEDINGS; ONLINE DISPUTE RESOLUTION A WAY FORWARD

By Megha Shawani, Shubhangi Tiwari……………………………………………………...285

38. CHILD ABUSE By Mehak Aneja……………………………………………………………………………..292

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39. THE PLIGHT OF THE INDIAN JUDICIARY By Mohit Sirohi……………………………………………………………………………..297

40. WOMAN DIRECTOR- A PROVISION ON PAPER OR IN PRACTICE? By Nikita Ninad Bokil and Shiva Sah………………………………………………………..313

41. DECODING THE INTERPLAY OF STANDARD ESSENTIAL PATENTS AND COMPETITION LAW : AN INDIAN PERSPECTIVE

By Nishtha Pant……………………………………………………………………………..319

42. LEGAL AND PRACTICAL ASPECTS OF AIRCRAFT LEASING IN INDIA By Piyush Singh Phogat…………………………………………………………………….327

43. ENFORCEMENT OF FUNDAMENTAL RIGHTS: STUDY IN THE CONTEXT OF USA, SOUTH AFRICA AND INDIA

By Prachi Tyagi……………………………………………………………………………..332

44. A SOCIO LEGAL STUDY OF MARRIED MUSLIM WOMEN IN CONTEMPORARY INDIA

By Pragati Verma…………………………………………………………………………...341

45. INSTITUTIONAL ARBITRATION IN INDIA: THE WAY TO THE FUTURE By Pranav Raina and Devansh Agarwal……………………………………………………353

46. MYTH AND REALITY OF CAA By Priyamvada Singh……………………………………………………………………….361

47. FREEDOM OF SPEECH ART 19 VS SECTION 499 & 500 OF IPC, 1860 By Priyank Chudasama and Akshata Pai…………………………………………………..369

48. A DETAILED STUDY ON CITIZENSHIP AMENDMENT ACT 2019 By Pujarani Behera…………………………………………………………………………378

49. ABORTION LAWS IN INDIA: THE PARAMOUNT NEED FOR CHANGE By Rishika Rishabh………………………………………………………………………….391

50. A FALLACIOUS RESCUE TO REVERSE DISCRIMINATION: EWS By Rohit Choudhary and Rahul Sodhi………………………………………………………404

51. POLICE BRUTALITY- A LEGAL, CONSTITUTIONAL AND INTERNATIONAL PERSPECTIVE

By Rudra Rout………………………………………………………………………………411

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52. ARTIFICIAL WOMB - CRÈME DE LA CRÈME TO EXTRICATE PREMATURE BABIES?

By S. Aparna and G.Srividhya Iyer…………………………………………………………421

53. INDIAN LEGAL ANALYSIS ON CHILD SEXUAL ABUSE: POCSO ACT 2012 By Sanjana Srivastava………………………………………………………………………437

54. PRATISPARDHA KANOON: THE COMPETITION WATCHDOG By Shambhavi Anand………………………………………………………………………..449

55. ADVANTAGES OF INTERNATIONAL COMMERCIAL ARBITRATION By Shardul Srivastava………..……………………………………………………………..457

56. REACTION TO THE PANDEMIC: A NEW ECONOMIC SYSTEM By Sharmeen Shaikh………………………………………………………………………...462

57. IMPACT ON NON-PAYMENT OF PART OR ENTIRE OF THE SALE CONSIDERATION

By Shashank Sridhar………………………………………………………………………..468

58. ENVIRONMENT PROTECTION: INDIAN ENVIRONMENTAL LAWS AND THE NEW CHALLENGE OF COVID-19 PANDEMIC

By Shashwat Tibrewal………………………………………………………………………477

59. VELLORE CITIZEN WELFARE FORUM V UNION OF INDIA, AIR 1996 SCC 2715 By Shefali Soni………………………………………………………………………………489

60. GREEN CONSUMERISM AND SUSTAINABLE CONSUMPTION By Shivi Chhaberiya………………………………………………………………………...493

61. JUDICIAL INTERVENTION: IS SECTION 34 CREATING AN ENDLESS LOOP? By Shreya Gopal.Ar…………………………………………………………………………503

62. INTERNATIONAL LABOUR STANDARDS AND ITS APPLICATION IN INDIA: THE ANALYSIS

By Shreya Saxena and Gunjan Maji………………………………………………………...512

63. ETHNIC CLEANSING OF ROHINGYA MUSLIMS: VICTIMS OF RACIAL KILLING AND HUMAN RIGHTS INFRINGEMENTS

By Sidrah Jami……………………………………………………………………………...524

64. ABORTION: A TABOO IN INDIA By Sonali Khare……………………………………………………………………………..536

65. EMERGING DYNAMICS AND DIMENSIONS OF ARBITRATION By Sri Hari. R……………………………………………………………………………….542

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66. THE US-IRAN CONFLICT AND THE BREACH OF INTERNATIONAL LAW By Subodh Singh…………………………………………………………………………….550

67. REALIZATION OF THE RIGHTS OF LGBTQ+ COMMUNITY By Sujan Ganesh……………………………………………………………………………560

68. ADULTERY IN INDIA By Surabhi Chhabra………………………………………………………………………...565

69. NO LOCKDOWN OF DOMESTIC VIOLENCE DURING COVID-19 By Susan Baisil……………………………………………………………………………...570

70. INTO THE SHADOWS: INTERWOVEN VOICES OF SILENCES AND VIOLENCE'S AGAINST WOMEN IN PRISONS

By Trisha Mukherjee………………………………………………………………………..581

71. QUINTESSENTIAL QUESTIONS TO LYNCHING By Tusha Singh and Sagaarika Singh……………………………………………………….595

72. RULE OF LAW By Upasana Borah………………………………………………………………………….607

73. RULE OF RABBLE: UPRISING MOBOCRACY By Vaneet Kaur Sokhi and Anishika Garg…………………………………………………..616

74. COVID-19: INFERENCE ON LAW FIRMS IN INDIA By Vasundhara Mahajan and Rhythm Aggarwal……………………………………………626

75. EUTHANASIA IN INDIA – AN ANAYLYTICAL STUDY By Vibhu Aggarwal…………………………………………………………………………635

76. DRACONIAN MEASURES OF DRAGON: HONG KONG SECURITY LAW By Vishwan Upadhyay………………………………………………………………………645

77. THE JURISPRUDENCE OF DHARMA IN THE HINDU EPICS By Vrinda Jain………………………………………………………………………………650

78. COVID 19 PANDEMIC SITUATIONS: - UNDERSTANDING THE LAW, RIGHTS AND RESPONSIBILITIES

By Yashwanth Hariharan.R and John Seema.B……………………………………………..655

79. CYBERCRIME: A SURVEY FOR PERCEPTION OF ADULTS By Yatharth Chauhan……………………………………………………………………….672

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MENTAL HEALTH- NOT A

PERSONAL FAILURE

By Aanya Agarwal and Visheshta Kalra

From Amity Law School, Noida

ABSTRACT

We live in a society in which an issue like

mental health is a stereotype and people

generally avoid accepting the fact that they

are having mental illness also it is seen as a

sign of weakness, not only the lower strata

but also the well-educated class struggle to

accept this fact. In countries like India, this

issue is more serious and the mindset of

people needs to be changed. We have to

acknowledge this truth that mental health is

as important as physical health and there is

no shame in having a mental illness. Also,

the laws and regulations are quite different

for the people suffering from severe mental

disorders and their rights are not the same

as of a normal person, in this paper, these

topics are discussed at length and an

attempt has been made to provide a clear

view to the readers.

INTRODUCTION

“Just because you don’t understand it doesn’t mean it isn’t so”

- Lemony Snicket

According to WHO ‘Mental health could be

a state of well-being during which a person

realises his or her own abilities, can address

the conventional stresses of life, can work

productively and is ready to create a

contribution to his or her community.’

Individuals with mental disorders are

powerless against misuse and infringement

of their essential rights. Such maltreatment

or infringement may happen from various

components in the public eye including

organisations, relatives, parental figures,

experts, companions, random individuals

from the network, and law implementing

offices. This sets a basis for a defensive

instrument to guarantee proper, sufficient,

convenient, and altruistic social insurance

administrations. Such defensive

components incorporate authoritative

arrangements and strategies to guarantee

that the privileges of this helpless gathering

are secured.

Mental health isn't only a concept that

alludes to somebody's mental and

enthusiastic prosperity, but is a condition of

mental and enthusiastic prosperity where a

person can utilize their intellectual and

passionate capacities, fulfil the quality need

and capacities within the general public.

Mental illnesses ought not to be thought of

uniquely in contrast to physical ailments.

Truth be told, the two are indivisible. Since

the whole body is associated and

intertwined, the two can’t be isolated. The

mind is an organ, simply like everything

else within the body and might be harmed

like every other part. When the mind is sick,

it's not disengaged in just the cerebrum, but

influences the whole body. Substance

misuse, self-damage, and self-destruction

are extremely normal and threatening in

those individuals with dysfunctional

behaviours. The disgrace encompassing

dysfunctional behaviour shields individuals

from getting the help they need with one

expecting to indicate signs of improvement

and makes them shroud their agony.

Few types of mental health problems:

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A person can be diagnosed with various

kinds of mental health issues, some of

which are briefly discussed below-1

1. Panic Attacks and Anxiety: A panic attack is an abrupt scene of exceptional dread that

triggers extreme physical responses when

there is no genuine risk or clear reason. Fits

of anxiety can be exceptionally startling. At

the point when fits of anxiety happen, you

may believe you're losing control, having a

cardiovascular failure, or in any event,

kicking the bucket.

2. Bipolar disorder: Bipolar confusion is a psychological instability set apart by

extraordinary movements in a state of mind.

Manifestations can incorporate an

incredibly raised disposition called

craziness. They can likewise incorporate

scenes of sadness. Bipolar confusion is

otherwise called bipolar illness or hyper

discouragement. Individuals with bipolar

confusion may experience difficulty

overseeing the regular day to day existence

errands at school or work or looking after

connections.

3. Depression: Depression is named a state of mind issue. It might be portrayed as

sentiments of pity, misfortune, or outrage

that meddle with an individual's regular

exercises. Individuals experience

wretchedness in various manners. It might

meddle with your day by day work,

bringing about lost time and lower

efficiency. It can likewise impact

connections and some constant wellbeing

conditions.

4. Drugs - recreational drugs & alcohol: A drug can be characterised as any substance

that is assimilated into the body of a living

life form and causes a rotation in the typical

body working. On numerous occasions,

1Bipolar Disorder, Mind (June 30, 2020, 10:25 AM),

https://www.mind.org.uk/information-

support/types-of-mental-health-problems/

these substances are utilized to treat the

manifestations of illness or to fix them.

There are likewise tranquilizes that

individuals take for reasons other than

restorative. Recreational medications are

psychoactive substances that adjust

cerebrum working. Individuals like to take

these substances since it briefly changes the

manner in which they think, feels, and see.

Liquor is the most mainstream of every

recreational medication

5. Phobias: A phobia is an unreasonable and nonsensical dread response. The effect of

fear can extend from irritating to seriously

impairing. Individuals with fears regularly

understand their dread is silly, however

they're not able to take care of business.

Such feelings of trepidation can meddle

with work, school, and individual

connections.

6. Self-harm: Self-hurt, otherwise called self-injury, is characterised as the deliberate,

direct harming of body tissue, managed

without the goal to end it all. Different

terms, for example, cutting and self-

mutilation have been utilized for any self-

hurting conduct paying little heed to a self-

destructive goal.

Scale of problem in India:

Mental health in a nation where

fundamental luxuries like clean water,

power, food, instruction, and lodging are

painfully missing isn't unexpected, yet

profound disgrace additionally adds to the

forswearing and disgrace around the

subject, cutting across lines of religion,

class, position and sexual orientation.

Mental health ought not to be dealt with

flippantly under any conditions, however,

less so in India, where around one out of

https://www.mind.org.uk/information-support/types-of-mental-health-problems/bipolar-disorder/about-bipolar-disorder/https://www.mind.org.uk/information-support/types-of-mental-health-problems/bipolar-disorder/about-bipolar-disorder/

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three individuals looking for clinical

assistance could be experiencing sorrow,

implying that somewhere in the range of 23

million might be needing psychological

wellness care at some random time. India

likewise has probably the most noteworthy

pace of self-destruction on the planet,

losing more than 220,000 per year as

indicated by World Health Organization

information; an understudy ends it all

consistently in India.

The treatment hole for emotional well-

being in India is faltering, with scarcely

5,000 specialists and 2,000 clinical analysts

in a nation of 1.3 billion. Mental

consideration represents a minuscule 0.06%

of India's human services spending plan. In

Bangladesh, the number is at 0.44% not

endlessly higher, yet it's despite everything

better.2

One of the biggest tragedies faced in the

country in the field of mental health is the

Erwadi Tragedy, 2001- Erwadi fire incident

is an accident that occurred on 6 August

2001, when 28 inmates of a faith-based

mental asylum died in the fire. All these

inmates were bound by chains at Moideen

Badusha Mental Home in Erwadi Village in

Tamil Nadu.

India’s outlook towards mental illness:

The what-will-human say mindset is far-

reaching to such an extent that some town

programs have connected mental

administrations to the nearby sanctuaries

with the goal that individuals can look for

help in the pretence of strict action to stay

2 Vikram Zutshi, India’s attitude towards mental

health issues is depressing, Qrius (July 4, 2020, 6:45

AM), https://qrius.com/indias-attitude-towards-

mental-health-issues-is-depressing/ 3 Vikram Zutshi, India’s attitude towards mental

health issues is depressing, Qrius (July 7, 2020,

away from the disgrace of presentation.

This mindset is proliferated in no little

measure by the harsh and musically

challenged perspectives toward

psychological well-being. For example,

Indian government officials and open

characters frequently scorn their rivals by

weaponising terms like "imbecilic," "hard

of hearing," "intellectually not well,"

"impeded," “bipolar," "incapacitated,"

"dyslexic" and “schizophrenic.”3

Psychological wellness circumstance in

India requests dynamic approach

intercessions and asset assignment by the

legislature. To decrease the disgrace around

psychological wellness, we need measures

to prepare and sharpen the network/society.

This can happen just when we have

steadiness across the country exertion to

teach the general public about mental

ailments. We additionally need steps to

interface the patients with one another by

framing an organization, so they could tune

in and bolster one another. Besides,

individuals encountering emotional well-

being issues ought to get similar access to

sheltered and successful consideration as

those with physical medical issues.

Furthermore, dysfunctional behaviour

should compulsorily be put under the ambit

of extra security. This will help individuals

to see psychological instability with a

similar focal point as they use for physical

maladies.4

10:45 PM), https://qrius.com/indias-attitude-

towards-mental-health-issues-is-depressing/ 4 Dr. Ramon Llamba, What India must do to solve

its mental health crisis?, The Economic Times, (July

8, 2020, 4:30 PM),

https://health.economictimes.indiatimes.com/news/

industry/what-india-must-do-to-solve-its-mental-

health-crisis/74314862

https://qrius.com/indias-attitude-towards-mental-health-issues-is-depressing/https://qrius.com/indias-attitude-towards-mental-health-issues-is-depressing/https://qrius.com/indias-attitude-towards-mental-health-issues-is-depressing/https://qrius.com/indias-attitude-towards-mental-health-issues-is-depressing/https://health.economictimes.indiatimes.com/news/industry/what-india-must-do-to-solve-its-mental-health-crisis/74314862https://health.economictimes.indiatimes.com/news/industry/what-india-must-do-to-solve-its-mental-health-crisis/74314862https://health.economictimes.indiatimes.com/news/industry/what-india-must-do-to-solve-its-mental-health-crisis/74314862

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India with a populace of more than a billion

houses, is one of the most noteworthy

numbers of - intellectually sick people, who

require long haul care. With under 10%

accessibility of the in-patient care required

for exceptionally sick patients and short of

what one therapist accessible for one lakh

Indians, the gap between assets and

prerequisites still remains excessively wide.

Because of this wide gap, an enormous

number of mental patients don't get

sufficient treatment and experience the ill

effects of long-standing sickness and

coming about of incapacity. A huge number

of the patients who do manage to reach the

brighter side of this illness, arrive so late,

that by then the disease gets incessant and

impervious to treatment.

Nexus between mental health and law:

The laws influencing Mental Illness are

often categorised in the following manner -

‘Hard’ and ‘Soft’ Laws.

A. "Hard" laws allude to laws that are official and enforceable globally or locally. In

India, some of the hard laws about mental

health include The Mental Health Act,

1987; The Protection of Human Rights Act,

1993; Persons with Disability Act, 1995;

The National Trust Act, 1999; Protection of

Women from Domestic Violence Act,

2005; Protection of Children from Sexual

Offences Act, 2012, and related legislation.

Prominent statutory legislation regulating

narcotics is the Narcotic Drugs and

Psychotropic Substances (NDPS) Act

1985.5

B. "Soft" laws, in turn, are not official. Be that as it may, these laws if all around built and

mirror an expansive agreement can turn

into a model for future enactment. To

explain this in simpler words, soft laws are

5 Pratima Murthy, B. C. Malathesh, C. Naveen

Kumar, and Suresh Bada Math, Mental health and

the law, PMC (July 5, 2020, 8:25 AM),

not laws, they are simply rules or policies

that are quasi-legal and not binding. It is

argued that these policies could become

permanent over the due course of time.

Some examples include the National

Mental Health Policy 2014 and the National

Mental Health Programme.

There have been a few amendments over

the course time, some of such revisions may

happen to improve the law, right blunders,

improve value, make the arrangements

progressively severe, or to ensure that the

law is consistent with international

conventions.

Indian laws regulating treatment of

persons with mental disorders:

The connection between psychiatry and law

frequently becomes an integral factor at the

hour of treatment of PMI (person with

mental illness). Treatment of PMI

frequently includes a decrease in individual

freedom of mental patients. The vast

majority of the nations in the World have

laws managing the treatment of mental

patients. Although there are intricate

portrayals of different types of mental

issues in different treatises in Ayurveda, the

consideration of the intellectually sick in

the refuges in India is a British

development. After the takeover of the

organization of India by the British crown

in 1858, countless laws were ordered with

hardly a pause in between for controlling

the consideration and treatment of

intellectually sick people in British India.

Some of these laws are:

1. Mental Health Act, 1987: The MHA has had some positive features while the rest

have been the target of critic ever since its

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC52

82613/

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5282613/https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5282613/

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founding. It is claimed to be concerned

fundamentally with the lawful

methodology of permitting, controlling

confirmations, and guardianship matters of

PMI. Human rights issues and

psychological wellness care conveyance

are not appropriately tended to in this Act.

2. Persons with Disability Act, 1995: PDA-95 was ordered in 1995 to expel separations in

the sharing of formative advantages versus

non-crippled people and to forestall misuse

and abuses of people with incapacity

(PWD). It accommodated obstruction-free

condition and explained duties regarding

the administration to design procedures for

exhaustive improvement programs, to

exceptional arrangement for the

incorporation of PWD into the social

standard. Under PDA-95, mental

impediment and dysfunctional behaviour

are arranged as states of incapacities. Along

these lines, the PMI is qualified for benefits

accessible to PWD as given under the Act.

3. United Nations Conventions for Rights of Persons with Disabilities, 2006: UNCRPD

was adopted in December, 2006. It was

ratified by the Parliament of India in May,

2008. It is an international treaty which

identifies the rights of disabled people as

well as the obligations on Parliament and

the NI Assembly to promote, protect and

ensure those rights. It aims to ensure that

disabled people enjoy the same human

rights as everyone else and that they can

participate fully in society by receiving the

same opportunities as others.6

4. Indian Contract Act, 1872: According to Indian Contract Act, 1872, any person of

sound mind can make a contract. Section 12

of the Act stipulates that a person is said to

6 What is UNCRPD?, Equality Commission (July 8,

2020, 2:20 PM),

https://www.equalityni.org/Delivering-

Equality/Addressing-inequality/UNCRPD-

Disability/What-is-UNCRPD

be of sound mind for the purpose of making

a contract, if, at the time when he makes it,

he is capable of understanding it and of

forming a rational judgment as to its effect

upon his interest. A person, who is usually

of unsound mind, but occasionally of sound

mind, may make a contract when he is of

sound mind. A person, who is usually of

sound mind, but occasionally of unsound

mind, may not make a contract when he is

of unsound mind. It means a PMI who is

currently free of the psychotic symptoms

can make a contract, whereas a person who

is currently intoxicated or delirious cannot

make a contract.

5. Marriage and divorce: Under Hindu Marriage Act, 1955, conditions in respect

of mental disorders, which must be fulfilled

before the marriage, solemnised under the

Act, are as follows.7

1. Neither party is incapable of giving a valid consent as a consequence of

unsoundness of mind.

2. Even if capable of giving consent, must not suffer from mental

disorders of such a kind or to such

an extent as to be unfit for marriage

and the procreation of children.

3. Must not suffer from recurrent attacks of insanity.

CONCLUSION

"It's okay to not be perfect. It's okay to make

mistakes. It's okay to do something that you

hadn't done, because if we don't do those

things, we never grow."

-Dawn Stanyon

7 Conditions for a hindu marriage, India code (July

11, 2020, 9:55 PM),

https://www.indiacode.nic.in/show-

data?actid=AC_CEN_3_20_00004_195525_15178

07318992&sectionId=38571&sectionno=5&ordern

o=5

https://www.equalityni.org/Delivering-Equality/Addressing-inequality/UNCRPD-Disability/What-is-UNCRPDhttps://www.equalityni.org/Delivering-Equality/Addressing-inequality/UNCRPD-Disability/What-is-UNCRPDhttps://www.equalityni.org/Delivering-Equality/Addressing-inequality/UNCRPD-Disability/What-is-UNCRPDhttps://www.indiacode.nic.in/show-data?actid=AC_CEN_3_20_00004_195525_1517807318992&sectionId=38571&sectionno=5&orderno=5https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_20_00004_195525_1517807318992&sectionId=38571&sectionno=5&orderno=5https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_20_00004_195525_1517807318992&sectionId=38571&sectionno=5&orderno=5https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_20_00004_195525_1517807318992&sectionId=38571&sectionno=5&orderno=5

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In our nation, the disclosure of

psychological sickness is frequently trailed

by refusal and wavering to look for help.

Despite its gigantic social weight,

emotional wellness stays an untouchable

subject that is vulnerable to age-old marks

of disgrace, biases, and fears. Even though

psychological issues can be restored or

controlled, a great many people will in

general hide their issues away from plain

view and endure peacefully. In addition to

the fact that we need to effectively cultivate

mindfulness about psychological well-

being, we additionally need to make

mindfulness about the idiocy of the marks

of disgrace appended to emotional

wellness, to annihilate them.

The articulation "mental disorder" signifies

psychological sickness, captured or

deficient improvement of the brain,

psychopathic confusion, or some other

issue or inability of the brain and

incorporates schizophrenia. The

articulation "psychopathic disorder"

signifies a tireless issue or incapacity of the

brain (regardless of whether including sub-

typicality of knowledge) which brings

about strangely forceful or truly flighty

direct concerning the next gathering, and

whether it requires or is defenceless to

clinical treatment.

In the irrefutable setting that each general

public needs laws in different territories to

keep up the prosperity of its kin,

psychological well-being care is one such

significant zone that requires fitting

enactment.

Mental healthcare facilities can be

improved in our country by continuous

implementation of region psychological

well-being program in a staged way with

help of sufficient administrative and money

related data sources is the need of the day.

Prepared psychological well-being care

work force, treatment, care and restoration

offices ought to be made accessible and

available to the majority. This must be

made conceivable by the sharing of duty by

government and non government

associations devoted to the reason for

mental health.All the clinical schools of our

nation ought to have a different branch of

psychiatry to guarantee satisfactory

preparing of students and progressively

number of postgraduate psychiatry learners.

Our country can fight mental heath issues

unanimously when the community is well

versed with the problems. For example,

government and private players need

arrangements for emotional wellness

disease as they assume a huge job in helping

the general public to battle against it. An

unmistakable position on psychological

well-being will assist everybody in

acknowledging how genuine a danger it is.

Schools and universities need to deal with

psychological well-being mindfulness,

sharpening and distributed help to

guarantee that no individual feels so far

harmed that he/she concludes that life does

not merit living any longer.

Each division in our country needs

psychological well-being strength

preparing for individuals who are a piece of

that industry to manage the negative impact

of burnout just as harsh encounters to have

on our emotional wellness.

General emotional wellness strategy ought

to be presented and legitimised which

ensures that help is accessible to anybody

and every individual who is connecting

with others about close to home and expert

issues that weigh intensely at the forefront

of their thoughts and soul.

*****

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CYBERCRIME IS THE BANE OF

THE INTERNET: IS INDIA READY?

By Aarushi Chopra

From Amity Law School, Noida

Scope of the Article

Statement of problem:

This article highlights the issue of the

increasing threat of cybercrime in India

with main emphasis on whether India is still

ready to deal and tackle with this growing

menace and what steps have been taken

place by the Indian government to deal with

this situation proactively.

Limitations:

Over the span of approving and examining

resources that the researcher has depended

upon, it has been unequivocally felt that the

ambit of this zone of law is still under

development, particularly in India

Introduction

Cybercrime is the bane of the internet and

new technologies generate new

opportunities of more innovative ways

of doing crimes and this threat is growing

multi fold in this new world of digitization

and growing technology. As the world is

becoming digital, crime is also moving

towards virtual space from physical space.

It is going through a massive change in its

modus operandi and it is going to multiply

whether we like it or not.

According to a study from the University of

Maryland, there is a cyberattack once every

39 secs. This shows how the technical

evolution have outpaced the defence as well

as security tactics of private organisations

and the governments all over the globe.

We are in this digital age where our virtual

identity has become an important aspect of

our day to day lives. We are now just a

bundle of numbers or codes in numerous

computer databases owned by corporations

and government. With the evolution of

cyberspace which is taking place at an

unprecedented pace, especially in the

developing economies, the exploitation of it

by utilising it in it’s true essence has made

people generate millions and millions of

dollars. Earlier, cyberthreats were hardly of

any value but now when we see it, it is

disruptive and has become rather

destructive. So with the scale of

cyberattacks increasing with each passing

day, not only India but all countries across

the globe cannot afford to ignore this threat.

What is Cybercrime?

Cybercrime refers to all the illegal activities

carried out by using technology as an

instrument. It is a criminal act which targets

a computer, network device or a computer

network.

An important feature of cybercrime is its

nonlocal character: acts can be done in

jurisdictions which are separated by vast

distances. This is also a severe problem for

law enforcement since international

cooperation is needed for previously local

or even national crimes now. For example,

if a person uses his computer to access child

pornography in a country which does not

ban child pornography, then is that

particular individual committing a crime in

a country where such data is illegal? Where

will cybercrime exactly take place?

Types of cybercrime:

Cyber criminals are professionals who are

very organised and use advanced

techniques. Others are just some novice

hackers. Hence, Cybercrime attacks can

commence wherever digital data exists,

along with an opportunity and motive.

Cybercrimes do not really occur in a

vacuum but are in fact distributed in nature.

Therefore, cybercriminals mainly rely on

https://www.britannica.com/topic/crime-law

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various other actors to finish the crime for

them like a malware creator who uses the

dark web to sell the code. They use

numerous attack vectors for the cyberattack

and are constantly developing to new

techniques for achieving their goals without

getting detected or arrested.

Most cybercrimes fall under the following

two categories:

I. Crimes that targets computer networks or devices (example: to

gain access to a computer)

II. Crimes using computers as an accessory to a criminal act

(example: online identity theft used

to steal funds from a bank account)

III. Crime using computer as a weapon for an attack (for example: DoS

attack -denial of service)8

Cybercrimes can be mainly bifurcated into

the following 3 kinds:

A. Cybercrime against persons (cyber harassment, online libel or slander,

child pornography, identity theft,

spoofing, credit card fraud)

B. Cybercrime against property (DDOS attack, hacking, theft of IP,

computer vandalism, computer

squatting, virus transmission)

C. Cybercrime against nations (cyber warfare, cyber vandalism)

The following are some standout

cybercrimes to watch out for:

1. Internet and email fraud 2. ATM fraud 3. Wire fraud 4. Software piracy 5. Botnets 6. PUPs 7. Exit scam

8 “Cybercrime types, examples, and what your

business can do”, exabeam,

8. Cyberextortion (demand of money to prevent a threatened attack)

9. Ransomware attacks (is a type of cyberextortion)

10. Crypto jacking (mining of cryptocurrency using resources not owned by hackers)

11. Cyberespionage (access of company or govt data by hackers)

Taking the example of Equifax, an

American credit monitoring company

was hit by a massive data breach which

impacted over 143 million customers. The

attackers found a vulnerability in Equifax’s

open source software which allowed them

to access all the sensitive files of the

company. The data stolen not only included

full names, birth dates, social security

numbers, addresses but also included

around 200,000 credit card numbers and

200,000 additional documents that

contained personal-identifying

information. Even the way in which the

breach was handled was widely criticized

which shows how there is a real need for

notification procedures for breaches.

Another example is the Uber breach where

hackers stole personal data of around 57

million riders and drivers. Uber paid the

attackers $100,000 to keep the data safe and

to keep quiet about the breach. The data

stolen included names of the riders and

drivers, their phone numbers and email

addresses. Even the driver’s license of some

drivers were stollen.

With the rapid increase in cybercrimes all

over the world, it has become a major threat

to all those who use the internet, with

millions of user’s data stolen over the past

few years. This has created a major dent in

many economies.

Is India Ready?

https://www.exabeam.com/information-

security/cyber-crime/

https://www.exabeam.com/information-security/cyber-crime/https://www.exabeam.com/information-security/cyber-crime/

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As India embarks on its journey to Digital

India, the challenge to address the issues of

cybersecurity needs to take place on a war

footing basis. Even companies are now

opting for cyber insurance policies. In fact,

according to the DSCI report, around 350

cybersecurity policies have been sold to

Indian companies till 2018, which is an

increase of 40% from those in 2017.9 But

certainly isn’t not enough since these

insurances can help cover losses only to

some extent and at the end of it the impact

of data breaches are not solely confined to

monetary losses.

The government of India has attempted to

form a cybersecure nation for all is citizens

and businesses. They had decided to launch

an updated version of the National

Cybersecurity Policy this year (2020),

which is all ready and will be announced to

the public soon as said by the National

Cybersecurity Coordinator Mr. Rajesh Pant

at an Assocham event. There were also a

few initiatives taken by the Indian

government in 2019 towards drafting of the

above mentioned policy:

1. CERT-in: Indian Computer Emergency Response Team

It is the National Agency developed to

handle the country’s cybersecurity. It

became operational in 2004 and its basic

aim is to respond to any computer security

incident when they occur, report its

vulnerabilities and to promote IT security

practices.

2. NCIIPC: National Critical Information Infrastructure

Protection Centre

9Shomiron Das Gupta, Is India Cybersecurity -

Ready In 2020?, Silicon India,

https://startup.siliconindia.com/viewpoint/ceo-

insights/is-india-cybersecurity-ready-in-2020-nwid-

23052.html

It was created by the central government

under Sec 70A of the Information

Technology Act, 2000 to protect

information infrastructure for critical

sectors of the nation from unauthorised

access, use, modification, disruption,

disclosure, etc. which include: power and

energy, telecom, transport, BFSI, strategic

and public enterprises.

3. Cyber Surakshit Bharat The Ministry of Electronic and Information

Technology (MeitY) launched this

initiative to spread awareness about

cybercrime, build capacity and enable

government departments on steps to be

taken for creating a cyber resilient IT set up.

It also aims at conducting workshops for

citizens as well as businesses to educate

them on the cybersecurity practices that can

be taken place.

4. Cyber Swacchta Kendra The Ministry of Electronic and Information

Technology (MeitY) launched this

initiative. It is a cleaning bot used for

analysing malware and detecting botnot

infections. It also aims at notifying, enable

cleaning and secure systems to prevent

further infections.

5. Personal Data Protection Bill, 2019

This is the most important initiative taken

by the Indian government. As the name

suggests, this bill aims to protect the

personal data of individuals in India from

being processed by government, companies

incorporated in India, foreign companies. It

also aims at establishing a Data Protection

Authority for the same.

https://startup.siliconindia.com/viewpoint/ceo-insights/is-india-cybersecurity-ready-in-2020-nwid-23052.htmlhttps://startup.siliconindia.com/viewpoint/ceo-insights/is-india-cybersecurity-ready-in-2020-nwid-23052.htmlhttps://startup.siliconindia.com/viewpoint/ceo-insights/is-india-cybersecurity-ready-in-2020-nwid-23052.html

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India also has an Information Technology

Act, 2000 (IT Act) which deals with

cybersecurity and cybercrimes. This act

provides protection for transactions taking

place through electronic interchange and

electronic communications. It also aims at

safeguarding electronic data, information,

records, and prevent any kind of unlawful

or unauthorised use of a computer system.

Cybercrimes like hacking, phishing, denial-

of-service attacks, malware attacks,

electronic theft and identity fraud are

specifically punishable under this act.

There are also some relevant rules which

are framed under the IT Act like:

i. The Information Technology (Reasonable security practices and

procedures and sensitive personal

data or information) Rules 2011 (the

SPDI Rules). It recommends

reasonable security practices and

procedures which can be

implemented for collecting as well

as processing personal or sensitive

personal data.

ii. The Information Technology Intermediaries Guidelines Rules,

2011, under which intermediaries

are required to implement

reasonable security practices and

procedures for making their

computer resources and information

contained in them secure.

There are other laws too that contain

provisions related to cybersecurity which

includes the Indian Penal Code, 1860 (IPC)

which punishes offences such as

defamation, cheating, criminal intimation

and obscenity even including the ones

committed in cyberspace, and then we have

the Companies (Management and

Administration) Rules, 2014 (the CAM

Rules) which are framed under the

Companies Act, 2013 requiring companies

to make sure that all security systems as

well as the electronic records are safe and

secure from any unauthorised access or

tampering.

Furthermore, there are also some sector-

specific regulations like the Reserve Bank

of India (RBI), the Department of

Telecommunication (DOT), the Securities

Exchange Board of India (SEBI) and the

Insurance Regulatory and Development

Authority of India Act, 1999, who have

mandated certain cyber security standards

that are to be maintained by their regulatory

entities like banks, telecom service

providers, insurance companies and other

listed companies.

Though India has taken a few steps and is

still taking more towards strengthening its

cybersecurity, it still needs to invest more

around this area, as these aforementioned

initiatives and laws can only help to an

extent. Strong legal foundation and policies

is the need of the hour. While we are

working on Digital India, we also need to

work more on cyber safety by making the

government, private institutions and

educational institutions work together.

Policies made by the government should

endure that both public and private entities

are equipped enough to tackle any

challenges of cybersecurity. Private entities

invest huge amounts on finding solutions

but it is needed to be understood with the

help and support from the government

which will make them well equipped to deal

with such incidents.

Besides all this, what also needs to be

looked into is the regulation of the role of

software developers and software product

companies. Such companies are pushing

software with evident vulnerabilities which

is easily exploited by cybercriminals. What

is even more important is the speed and

agility that is there while we counter these

crime. So to stay one step ahead of the

attacker, one needs to continuously adjust

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and improve and the technology needs to

constantly evolve.

Conclusion:

India is still way far behind and has to catch

up if it wants to be at par with other

developed countries on readiness

parameters of cyber security infrastructure.

More serious initiatives need to be taken

with a more focused and well-defined

approach along with a skilled cyber team.

Since cybersecurity is of national

importance, there is a need for more public

awareness-raising campaigns and

education so as to promote the training of

needed specialists in cybersecurity. Finally,

considering the global nature of cyber

threats, it is important to note that

cybersecurity cannot be addressed in

isolation and an international approach also

needs to be sought. The key elements to

achieve an effective approach in

cybersecurity is the coordination as well as

collaboration between various governments

and private sector entities from around the

globe. India has entered into various

cybersecurity related bilateral agreements

with various countries and we hope more

such agreements will be signed soon.

To make Digital India crime free, we need

a two-pronged approach, where firstly, we

establish a nationwide hygiene campaign to

pre-empt attacks likely to occur due to

human error and secondly, we need to

strengthen existing laws and enforce them

procedure on security agencies. Therefore,

with sufficient amount of nationwide

awareness on cybersecurity, strong policies

and initiatives, India will definitely be able

to fight major cyber threats more efficiently

and effectively, avoiding heavy damages.

References:

1. “Cybercrime types, examples, and what your business can do”,

exabeam,

https://www.exabeam.com/informa

tion-security/cyber-crime/

2. Shomiron Das Gupta, Is India Cybersecurity - Ready In 2020?,

Silicon India,

https://startup.siliconindia.com/vie

wpoint/ceo-insights/is-india-

cybersecurity-ready-in-2020-nwid-

23052.html

*****

https://www.exabeam.com/information-security/cyber-crime/https://www.exabeam.com/information-security/cyber-crime/https://startup.siliconindia.com/viewpoint/ceo-insights/is-india-cybersecurity-ready-in-2020-nwid-23052.htmlhttps://startup.siliconindia.com/viewpoint/ceo-insights/is-india-cybersecurity-ready-in-2020-nwid-23052.htmlhttps://startup.siliconindia.com/viewpoint/ceo-insights/is-india-cybersecurity-ready-in-2020-nwid-23052.htmlhttps://startup.siliconindia.com/viewpoint/ceo-insights/is-india-cybersecurity-ready-in-2020-nwid-23052.html

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ANALOGOUS SCRUTINY OF REAL

ESTATE LAWS IN INDIA AND

BRITAIN

By Aditi Joshi and Tushar Kumrawat

From Indore Institute of Law

ABSTRACT

Real estate law is the field of law that

governs purchasing, using and selling of

land precisely. This law is related to how

people acquire property and how they make

use of the property they own. Real estate

law is also known as real property law.

Different countries have different laws

relating to real estate. In the following write

up we are going to have a comparative

analysis between the real estate laws

between India and United

Kingdom/Britain.

Introduction

It is called “Real” estate because it is related

to real property. Real property is land in

contrast with personal property or assets

like jewellery, objects, vehicles, etc.

Fixtures that lies above the land and are

attached to it, such as buildings and other

structures are a part of real estate.

Before the mid-nineteenth century, the

standards governing the transfer of real and

individual property on an intestacy were

very unique. In spite of the fact that this

division doesn't have a similar importance

any longer, the difference is still significant

due to the fundamental differences between

the two categories. An example is the real

fact that land is immovable, and in this

manner the guidelines or the laws that

governs it must differ by mode of its

utilisation. A further purpose behind the

10 Real estate law, Justia

(https://www.justia.com/real-estate/)

differentiation is that rules of the legislation

is often drafted employing the traditional

terminology.

The division of land and assets has been

condemned as being not acceptable as a

reason for arranging the standards of

property law since it focuses consideration

not on the proprietary interests themselves

yet on the objects of those interests.

Real property can be classified into:

1. corporeal hereditaments – tangible real property (land or other

structures)

2. incorporeal hereditaments – intangible real property ( an

easement of way, etc)

There are various aspects of this law like

purchase financing, zoning, title, deeds,

taxes and estate planning, etc.

Real estate law is closely tied to various

other areas of law For example, the sale of

real estate is governed by the contract law,

and mandates that such contract be in

writing. There are various specific types of

torts and crimes that apply to real estate. For

example, trespass refers to entering the land

of another without authority to do so, and it

can be a crime or the subject of a civil

lawsuit. Real estate is also subject to special

provisions in family law, such as the rights

of a spouse in the marital home.10

Real estate in India is administered and

impacted by a unique combination of State-

specific and Federal laws, whereas real

estate in Wales and England are majorly

governed by two main pieces of legislation,

The law of property Act, 1925 and The land

Registration Act, 2002.

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There are several land related laws in India,

the same is with many other countries.

Every law has a different and separate

function in protecting rights to land.

Talking about India.

1) Transfer of Property Act, 1882- A Central Act that provides general and basic

principles of movable as well as immovable

property, for example lease, mortgage, sale,

exchange, part performance and lis

pendens.

The states are required to adopt the

provisions of this Act.

2) Registration Act, 1908 and Indian Stamps Act, 1899- These Acts govern laws

relating to requirement for registration of

various deeds, instruments as well as

documents relating to transfer of interest in

immovable property and payment of stamp

duty.

3) Indian Easement Act, 1882- The laws relating to easementry rights to immovable

property are governed under this Act.

4) The Indian Contract Act, 1872- The laws related to contracts in India are governed

under this Act such as capacity to enter into

contract, execution, implementation,

breach and remedies available, etc.

5) Land Revenue Codes- There are many states in India who have formulated their

own land revenue codes by which laws

relating to agricultural land-holding, types

of tenancy, land revenue etc are governed.

6) The Real Estate (Regulation and Development) Act, 2016 (RERA)- RERA

governs development, marketing and sale

of real estate developments and projects in

11Real Estate Laws In India (

https://www.lawsenate.com/publications/articles/re

order to protect interests of purchasers in

the real estate sector.

Some of the features of RERA are as

follows:

a) Under this Act, each state needs to establish a Real Estate Regulatory Authority. The

authority can be approached by the

purchaser in the event of any complaints

against a developer.

b) According to this Act, it is compulsory to enlist each under development property

where land is over 500 sq. meter or

incorporates eight apartments.11

c) Neglecting to enrol and register project under authority ambit may prompt

punishment up to 10% of the project cost.

d) As a purchaser, you have to pay just for carpet area and not for an overly built

region.

e) The manufacturer needs to put 70% of the cash got from the purchaser into an

alternate record. This cash will be

withdrawn when the project is completed.

This will stop misbehavior of manufacturer

of utilizing cash raised for one anticipate for

another undertaking.

f) The builder should give five-year guarantee to any auxiliary deformities in the structure.

g) The developer needs to distribute all right data about the project, for example, venture

plan, design, endorsement of the

administration, land title and anticipated

date of fulfillment. This data ought to be

accessible with RERA.

7) Foreign Exchange Management Act, 1999- FEMA governs the sale and purchase

of immovable property in India by various

foreign entities.

Real estate laws in England

al-estate-laws-india.pdf) Accessed on 26/07/2020 at

3:50 pm

https://www.lawsenate.com/publications/articles/real-estate-laws-india.pdfhttps://www.lawsenate.com/publications/articles/real-estate-laws-india.pdf

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There are two main pieces of legislation

that underpin Real estate in England and

Wales:

The Law of Property Act, 1925 and the

Land Registration Act, 2002.

The former one introduced some major

reforms in the Real estate sector and also

consolidated and modernised pre-existing

real estate laws.

The ownership of land, many of the rights

and obligations which are related to it must

be registered at the Land registry, which is

a government agency. The regime of land

registration is given under the Land

Registration Act, 2002 and related

regulations.

However, it is to be noted that these two

Acts are not at all all-inclusive. There are

other legislation that governs various

aspects of the real estate law for example,

the execution formalities for contracts and

deeds.

Relevancy of International laws to real

estate

Indian perspective:

Several concepts or principles recognised

under International law have been

historically adopted in some or the other

form in the various legislations which

govern real estate in India for example,

rights of agriculturalists to fair

compensation in case of acquisition of

lands by the Government of India.

However, International laws do not have a

direct applicability in India.12

UK perspective:

The real estate sector is governed by the

laws of domestic jurisdictions. Due to

which, legal formalities and requirements

relating to real estate are left untouched by

International Laws. However, transactions

12 Supra.1

relating to real estate are not ring-fenced

and various areas of real estate have an

International element. For example,

Environmental policies and laws in the UK

often derive a web full of International

agreements.

Ownership

Indian perspective:

There was a time when right to property

was recognised as a fundamental right

under the Constitution of India but now, it

is a constitutional right and not a

fundamental right. Article 300-A of the

Constitution mandates that no person shall

be deprived of his property save by

authority of law, embodying the doctrine “

eminent domain” which provides for the

acquisition of private property by the

government in the interest of public.

Also, States are given the power to legislate

as well as impose legal restrictions on the

ownership of lands by various classes of

people such as- land owners with leasehold

rights, cultivation rights, transferable or

non-transferable rights, mortgagees, land

owners belonging to SC/ST categories, etc.

We may also find that in certain states,

ownership of real estate has been limited

such that non-agriculturalists are not

allowed to buy agricultural lands in that

state.

Further, under the current foreign exchange

norms, no person living outside India can

acquire any immovable property within

India, except if permitted.

UK Perspective:

Any person who is above the age of 18,

whatever his nationality may be is eligible

to buy and sell freehold property without

any restriction.13

13 A Brief Legal Guide to Investing

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Types of Rights over land

Indian Perspective:

Wide variety of rights over land are

recognised in India and they vary diversely

in their nature. They are-

a) Freehold Rights: These refer to absolute right, title and interest of land against the

world.

b) Leasehold Rights: These rights refer to absolute rights and interest to hold and use

a property by a tenant or lessee, as per the

terms of the lease deed for a fixed tenure.

These are rights in rem.

c) Licence Rights: These refer to right of a licensee to occupy or use a property on a

non-exclusive basis. Here, no easement or

interest is created in the proipertry in favour

of the licensee. These are rights in

personam.

d) Easement Rights: These refer to the right which the owner or the occupier of the land

possesses for the purpose of enjoyment of

land. One such example can be right of

passage.

e) Development Rights: These are unused rights which allow builders to make

changes to their property within the limits

imposed by the local authorities or the

government.

f) Subsurface Rights: These are the rights to the earth below the land and any such

substance which can be found under the

surface.

UK PERSPECTIVE:

There are different categories of rights over

immovable property which are recognised

in England and Wales, some of which are

as follows:

in Real Estate in the UK (

https://www.mayerbrown.com/-

/media/files/perspectives-

events/publications/2015/02/a-brief-legal-guide-to-

investing-in-real-estate-

in/files/brieflegalguidetoinvestinginrealestateinuk/fi

a) Ownership Rights: Under this there are three types of ownership interest: Freehold,

Leasehold and Commonhold.14

b) Legal Rights: They must be created by deed such as legal charges.

c) Equitable Rights: Many of these are created by contract such as agreement of sale.

d) Other Rights: These may contain rights that arise without any documentation. For

example perspective rights.

System of Land Registration

Indian Perspective:

Indian law does not stress upon registration

of the title or the land. Instead, it focusses

on the registration of the documents under

which the title is transferred in accordance

with the Registration Act, 1908.

UK Perspective:

In England and Wales, every unregistered

land must be registered on occasion such as

grant of lease, grant of mortgage, and the

grant of lease for more than seven years.

CONCLUSION

As striking as the outcomes of this analysis

may be, the fact is that the organisation of

assets across international borders is also

equally risky. Appropriate means of

protection are an exact, individual

clarification, a tax ruling and, where

appropriate, a tax contract. Legal,

descriptive, analytical and comparative

procedures have been deployed in order to

govern the likely impact of technological

change on the dissemination of legal risk

with particular reference to India and UK.

The impact is the extent to which a change

in transactional process may inadvertently

leattachment/brieflegalguidetoinvestinginrealestatei

nuk.pdf) accessed on 29/07/2020 at 12:45 pm 14 Ashurst, Real estate rights and registration in the

United Kingdom

(https://www.lexology.com/library/detail.aspx?g=e

f7e38a9-973c-47c0-bcf8-9bdf69b230d0)

Accessed on 01/07/2020, 4:05 pm

https://www.mayerbrown.com/-/media/files/perspectives-events/publications/2015/02/a-brief-legal-guide-to-investing-in-real-estate-in/files/brieflegalguidetoinvestinginrealestateinuk/fileattachment/brieflegalguidetoinvestinginrealestateinuk.pdfhttps://www.mayerbrown.com/-/media/files/perspectives-events/publications/2015/02/a-brief-legal-guide-to-investing-in-real-estate-in/files/brieflegalguidetoinvestinginrealestateinuk/fileattachment/brieflegalguidetoinvestinginrealestateinuk.pdfhttps://www.mayerbrown.com/-/media/files/perspectives-events/publications/2015/02/a-brief-legal-guide-to-investing-in-real-estate-in/files/brieflegalguidetoinvestinginrealestateinuk/fileattachment/brieflegalguidetoinvestinginrealestateinuk.pdfhttps://www.mayerbrown.com/-/media/files/perspectives-events/publications/2015/02/a-brief-legal-guide-to-investing-in-real-estate-in/files/brieflegalguidetoinvestinginrealestateinuk/fileattachment/brieflegalguidetoinvestinginrealestateinuk.pdfhttps://www.mayerbrown.com/-/media/files/perspectives-events/publications/2015/02/a-brief-legal-guide-to-investing-in-real-estate-in/files/brieflegalguidetoinvestinginrealestateinuk/fileattachment/brieflegalguidetoinvestinginrealestateinuk.pdfhttps://www.mayerbrown.com/-/media/files/perspectives-events/publications/2015/02/a-brief-legal-guide-to-investing-in-real-estate-in/files/brieflegalguidetoinvestinginrealestateinuk/fileattachment/brieflegalguidetoinvestinginrealestateinuk.pdfhttps://www.mayerbrown.com/-/media/files/perspectives-events/publications/2015/02/a-brief-legal-guide-to-investing-in-real-estate-in/files/brieflegalguidetoinvestinginrealestateinuk/fileattachment/brieflegalguidetoinvestinginrealestateinuk.pdfhttps://www.lexology.com/library/detail.aspx?g=ef7e38a9-973c-47c0-bcf8-9bdf69b230d0https://www.lexology.com/library/detail.aspx?g=ef7e38a9-973c-47c0-bcf8-9bdf69b230d0

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affect risk. Risk being the significance of

change and the likelihood of that

consequence having a adverse effect.

*****

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ANALYSIS OF JAMMU AND

KASHMIR DOMICILE LAW

By Aditya Hawaldar

From Maharashtra National Law

University, Mumbai

Abstract

On 5th August 2019, two Jammu and

Kashmir specific provisions, Article 35-A

and 370, were abrogated and diluted

respectively and the Jammu and Kashmir

Reorganisation Act, 2019 was passed. As

per the provisions of this act, the State of

Jammu and Kashmir was reorganised and

re-constituted into the Union Territory of

Jammu and Kashmir and the Union

Territory of Ladakh. The reorganisation

prompted fears of demographic change in

Jammu and Kashmir in absence of a state

domicile law which would shield the local

residents of J&K from outside competition

in education and employment. Taking

cognizance of the public opinion, the

Central Government enacted the Jammu

and Kashmir Reorganisation (Adaptation of

State Laws) Order in April 2020, which

introduced new eligibility criteria for the

grant of domicile status in the territory by

inserting a new section dedicated to the

same in the Jammu and Kashmir. This

paper aims to analyse whether the new

domicile law sufficiently protects the rights

of locals in employment, employment and

acquisition of land. To this effect, the paper

begins with a thorough explanation of the

concept of domicile as it has evolved in

English common law and Indian case law.

This is followed by a brief account of

eligibility criteria for domicile status in

different Indian states and an enumeration

of the law’s salient features, which also

15 Dicey, A., Morris, J., Collins, L. and McClean, J.,

1949. Dicey And Morris On The Conflict Of Laws.

6th ed. London: Stevens, p.87.

includes comparisons with the previous

law. Lastly, the paper offers a critical

perspective on the law and suggests

possible modifications / suggestions which

would assist in fulfilling the law’s

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