THE ART OF CROSS EXAMINATION

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Cross Examination-: Cross examination is a part of the trial process in which the witness called by the one’s opponent is examined.

AN INTRODUCTION TO CROSS-EXAMINATION

Purposes of Cross-Examination

The first decision to make is whether you should even cross-examine a witness.

In order to make that decision, you must know what you want to accomplish by cross examining a witness. Authorities on trial practice, following are the factors which are to be considered-:

1 . Did the witness hurt your case by the testimony given on direct Examination? If so, can you minimize or repair the damage on cross-examination?

2. Can you obtain testimony on cross-examination to help your case?

3 . Can you obtain testimony on cross-examination that will hurt your Adversary’s case?

4. Do you need the witness to establish an evidentiary foundation to admit a document or other exhibit in evidence?

5. Can you discredit the testimony given on direct examination? In other words, can you demonstrate inconsistencies in the testimony given on direct examination? Can you demonstrate that the testimony given on direct examination conflicts with the testimony of other witnesses?2

6. Can you discredit the witness? For example, can you show that the witness is biased? Prejudiced in favor of your adversary and/or against your client? Has a motive to lie? Is personally, financially, or otherwise interested in the outcome of the litigation? Was not in a position to see or hear the event that he/she testified about on direct examination?

7. Can the cross-examination be used to enhance or destroy the credibility of other witnesses?

8. Is the witness so important that you should undertake some sort of crossexamination to fulfill the expectations of the case?

Unless the answer to one or more of these questions is “yes,” you would be well advised not to cross-examine the witness.

you state “No questions.” The judge  may even understand that you have no questions for the witness because the testimony given on direct examination was not important.

Guidelines for the Cross-Examination

Cross-examination almost always ventures into dangerous territory. The reason for this is that the witness is usually adverse or hostile to your client’s position.

Therefore, you must control the witness and, more particularly, the witness’ testimony. This can be accomplished by following certain guidelines during the cross-examination.

1. Do not ask a question unless you are reasonably certain that you already know the answer. (Some would say do not ask the question unless you are certain you know the answer). Cross-examination is not the time to discover new facts. It is not the time to be curious. Remember, curiosity killed the cat. It may likewise kill your case.

2. Treat the witness fairly. You should not be hostile, especially if you want to gain concessions from the witness, including that he/she may have been mistaken in his/her testimony on direct examination.

3. Use leading questions. A leading question suggests the answer, which is usually “yes” or “no.”

4. Never ask open-ended questions—questions that ask “how” or “why” or that require the witness to explain. These types of questions can lead to disaster. Never allow a witness to explain anything on cross-examination.

5. Listen to the answers. Do not mechanically ask one question after another without listening to the witness’ answers. The answers may contain the favorable testimony that you are seeking to obtain in the crossexamination. When this happens, you have accomplished your task and you should consider ending your cross-examination. On the other hand, if

you do not listen to the answers you may not hear damaging testimony

that should be addressed.

6. Do not allow the witness to repeat (and therefore reinforce in the mind of the judge) the testimony given on direct examination. There is no reason to

ask a question that allows the witness to repeat his testimony. The odds

are very small that the witness will testify differently on cross examination. You know the testimony given on direct examination, the

witness knows the testimony, the judge knows the testimony. So just dive

into your cross-examination.

7. Keep your questions “short and sweet” and in plain English. Your goal is to obtain one fact with each question. Ideally, each question should be posed as a declaratory statement of a single fact calling for affirmation by the witness. This will make the cross-examination much more manageable for you, prevent objections from your adversary (for example,that you are asking compound questions), and allow the judge to more easily follow and understand your cross-examination.

8. Ask the important questions at the beginning and end of your cross-examination. People, including jurors, remember best what they hear first and last. Conclude your cross-examination on a high note—your strongest point.

9. Your cross-examination should be brief. Remember, you are trying to

“score points” to be used in your closing argument. In a lengthy crossexamination, your strongest points will be lost and the less significant points will be forgotten by the judge.

10. Control the witness’ answers. The best way to control the witness’ answers is to ask simple and clear questions. By doing so, you will not give the witness an opportunity to provide harmful testimony. If your question calls for a “yes” or “no” answer and the witness provides additional testimony that is harmful to your case, you should ask the court to strike the testimony as being nonresponsive to your question. Although you cannot “unring a bell,” the judge eventually will understand that the5 witness’ conduct is improper. If the witness answers a question other than the one you asked, ask it again, and yet again if necessary.

11. Do not ask one question too many. Remember the purpose of crossexamination—you are trying to obtain favorable testimony so it can be used in your closing argument. You need not ask the ultimate question that will drive your point home to the judge. Instead, your cross-examination should only suggest the point to the judge. Your closing argument will Drive the point home. Remember Irving Younger’s line from his famous lecture on cross-examinations: “Sit down!”

The use of these guidelines will allow you to be in control of the crossexamination. By being in control, you will be in a better position to obtain the testimony to fulfill the purposes of your cross-examination.

Scope of Cross-Examination

The evidence rules provide that “[c]ross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.credibility need not be based on evidence adduced at trial. As a result, you will always be entitled to establish, for example, that the witness is biased or prejudiced, has a motive

to lie, is interested in the outcome of the case or has made a prior inconsistent statement. These areas of impeachment will be briefly examined shortly. In addition to the subject matter of the direct examination and matters affecting the credibility of the witness, the cross-examination may also delve into “additional matters”, subject to the court’s discretion. This means that a witness who “opens the door” to additional matters during the cross-examination may be questioned on the matters as if they were discussed during the direct examination. Moreover, as a practical matter, at the “end” of your cross-examination, you may ask the court for permission to examine the witness on matters not covered on direct examination rather than later calling the person back to the stand as your witness. Challenging the Reliability of the Testimony

At this point, you should have an understanding, or at least an appreciation, of the purposes, guidelines and scope of cross-examination. Now we will examine several specific areas of cross-examination, including challenging the reliability of the witness’ testimony and impeaching the credibility of the witness by demonstrating bias, interest, prejudice, motive, and prior inconsistent statements. Assuming that you proceed with cross-examination, you must, if at all possible, challenge the reliability of the witness’ testimony. This area of cross-examination involves examining the witness on what he/she saw, heard, remembers and is able to describe about an event. It seeks to discredit the witness’ testimony. For example, on direct examination a witness may testify about the cause of an accident (what he/she saw or heard). On cross-examination, you should seek to obtain testimony that the accident occurred quickly and unexpectantly, that the witness was not in a good position to see the accident, etc. The cross-examination should plant a seed in the minds of the judge that the accident may not have happened as described by the witness on direct examination. You should also establish that the witness has forgotten details of the event and/or is unable to accurately testify about an event. This will cause the judge to question the accuracy or reliability of the witness’ testimony on direct examination. For example, on direct examination the witness may have testified about the distances between vehicles before an accident. On cross-examination, you should seek to establish that the witness’ testimony about the distances is not accurate or reliable.

Impeachment

Impeachment means discrediting the witness. In other words, attacking the credibility of a witness. The goal is to demonstrate that the witness and/or the witness’ testimony on direct examination should not be believed. There are various methods of impeachment, including bias, interest, motive, prejudice and prior inconsistent

Law Relating to Cyber Squatting

As the scope of Internet is expanding day by day and more and more businesses are moving on the internet. sites like www.ebay.com, www.facebook.com, www.gmail.com etc. Have earned lot of reputation and are identifiable by their domain name then by any other trademark. While trademark is for physical world, domain names are the trademarks in the virtual domain. However Indian trade mark law does not recognizes domain name as trademarks, But still domain name work as a trademark, they are equally vulnerable to get infringed, diluted by the use of any other similar domain name.

Cybersquatting-This is a practice done by those people who are intending  to infringe the already used domain names specially those domain names which have a goodwill and reputation, they use the unused space in the domain name space and just register  a domain name which is deceptively similar to the reputed domain name and then they resell the deceptively similar domain name to either those persons who want to en cash upon the goodwill and reputation of the well known domain names, or to the reputed sites themselves to protect their good will they buy those domain name at an inflated price.

The World Intellectual Property Organization (WIPO) Arbitration and Mediation Center deals with domain name disputes under the new Uniform Dispute Resolution Policy applicable to generic top-level domain names adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) on August 26, 1999. The WIPO Center’s Domain Name Dispute Resolution service has been established specifically to administer domain name disputes with the availability of electronic case filing facilities and a well developed case administration system.

Uniform Domain Name Dispute Resolution Policy was formed by the recommendation of (WIPO) and it is thereby formed to facilitate the dispute resolution due to use of domain name in bad faith.

i.                    If the use of an Impugned Domain is infringing upon the reputation or the goodwill of any other domain name then the impugned domain can be blocked by the body.

ii.                  If the Impugned domain is made to make profit from reselling because of its infringing nature, the body keeps a check on these practices.

iii.                The UDNDRP keeps a check on non bon fide use of trade name.

iv.                 It keeps a check on those domain names which causes confusion in the people.

The first case of cybersquatting was of WWF where the respondent had allegedly made a site www.worldwrestlingfederation.com and offered it to sell it to WWF at high dividend, WWF filed the suit against the respondent and found out that the alleged domain name is perhaps made in bad faith and hence was infringing upon the reputation and goodwill of the respondent. So the forum ordered to transfer the impugned domain name to WWF.

In India the first case of cyber squatting was of Yahoo Inc. V. Aakash Arora & Anr. Whereby the registered a deceptively similar domain name yahooindia.com, it was found banking upon the reputation and goodwill of yahoo.com

The Bombay High Court in Rediff Communication v. Cyberbooth & Anr AIR 2000 Bom. observed that the value and importance of a domain name is like a corporate asset of a company. In this case the defendant had registered a domain name radiff.com which was similar to rediff.com. The court gave a decision in favor of the plaintiff.

In another case the defendant registered a number of domain names bearing the name Tata. It was held by the court that domain names are not only addresses but trademarks of companies and that they are equally important. (Tata Sons Ltd v. Monu Kasuri & others 2001 PTC 432)

In  Satyam Infoway Ltd. v Sifynet Solutions 2004 (6) SCC 145  domain names www.siffynet.com and www.siffynet.net was found to be deceptively similar and Infringing upon the reputation of satyam, In this case The Supreme Court held that “domain names are business identifiers, serving to identify and distinguish the business itself or its goods and services and to specify its corresponding online location.” The court also observed that domain name has all the characteristics of a trademark and an action of Passing off can be found where domain names are involved. The decision was in favor of the plaintiff.

Conclusion

With the initiative of the WIPO and Indian laws now with synchronization with the WIPO, it is now a clear law that cybersquatting is now being treated at par with the trademark infringement, because merits on which the cybersquatting cases are decided are at par with that of trademark infringement .However still as the arena of cyber space is increasing day by day and with innovative features like cloud computing and businesses largely operating online, Even various business transactions are being handled from domain addresses than from physical addresses. There is a need to setup a specialized forum in the country to handle domain name related disputes. There must also be a specialized mechanism to dispose off these domain related disputes in the lines of UDNDRP.

Supreme Court on Auctioning of Natural Resources

“A Duly publicised auction conducted fairly and impartially is perhaps the best method for discharging this burden and the methods like first come first served when used for alienation of natural resources/public property are likely to be misused by unscruplous people who are only interested in garnering maximum financial benefit and have no respect for the constitutional ethos and values.”

G.S.Singhvi J, in Centre for Public Interest Litigation v. Union of India (2012) 3 SCC 1, para 96

The limits of territorial nexus requirement in light of Vodafone case and the Finance Act, 2012

The limits of territorial nexus requirement in light of Vodafone case and the Finance Act, 2012

The dispute between the Vodafone International Holdings B.V and Indian tax authority raised the question of the territorial nexus of the Indian taxation authority on the foreign company’s transactions.

 What is the dispute?

Brief facts of the case are: In December, 2006, Hutchison Essar Ltd. (HEL) is a company which is registered in India and having all the capital assets as well as providing services to 23 telecom circles in India along with subsidiary alliances. The share distribution of the HEL is 33% and was held by the Essar Group of Companies which is also an Indian Registered company. But the remaining 67% interest of  Hutchison Essar Ltd. (HEL) was held by Hutchison Telecommunications International Ltd. (HTIL), which is a Hong Kong based company and through a maze of subsidiaries in British Virgin Islands, Cayman Islands and Mauritius (around 15 offshore companies) and through complicated ‘option’ agreements with a number of Indian companies.

 Hutchison Telecommunications International Ltd. (HTIL), is a foreign company as far as tax liability on company is concerned.

Vodafone International Holdings B.V is also a Foreign company whose operations are based in Netherlands is said to have entered into an agreement with HTIL through HTIL subsidiary Cayman Island company of the Hutch Group [viz., CGP Investments (Holdings) Ltd. (CGP)] to acquire an Interest in 67% share of HEL, thereby overtaking the control and operations of HEL which is an Indian company.

In the context of aforementioned transaction between the two foreign companies the Vodafone company is liable to pay capital gain tax as it has acquired an Interest in an Indian company and Indian Tax authority have a jurisdiction over the Indian company HEL and Vodafone by acquiring the shares have a full control over the assets of the HEL and held to have gained a capital asset thereby. This is the subject matter of the dispute.

The Vodafone contended that the Indian Taxing authority have no territorial nexus over the subject matter as the transaction happened between the two foreign companies and on the foreign land .Also the transfer of shares is between CGP and Vodafone and there is no capital gains as alleged since the operation and management of both the companies are outside India, since there is no transfer of assets between HEL and Vodafone there is no question of capital gains.

There is a tax evasion of about 12000 crores as alleged by Income tax authority.

Key contentions by the parties on Dispute.

The Indian taxation authority issued a notice to Vodafone BV for the payment of Capital gain tax which was due on them as now after the aforementioned dealings the company has started operations in India under the flagship of Vodafone as it now holds majority shares in HEL, Aggrieved by the said notice the Vodafone BV approached the High court through a writ petition.

The main contentions of the taxation authority were that subject matter is not limited to transfer of share from CGP to Vodafone but also includes transfer of rights of HTIL vested in HEL thereby facilitating Vodafone operations in India which is proved by share agreement between HTIL and Vodafone and also by other purchase documents, Such transaction has a sufficient territorial nexus to India and is chargeable to tax under the Income-tax Act, 1961.

The Vodafone on the other hand contended that such transaction represents a transfer of a share (which is a capital asset) of a Cayman Island company, i.e., CGP. CGP through its downstream subsidiaries, directly or indirectly controlled equity interest in HEL. Any gain arising to the transferor or to any other person out of this transfer of a share of CGP is not taxable in India because the asset (i.e., share) is not situated in India.

The Bombay HC rejected the petition of Vodafone on the grounds, The HC first found that there is a nexus between the Indian fiscal jurisdiction and the said transaction in issue, The court held that the transfer of share between the Vodafone BV and CGP was for a motive of discontinuing the operations of HTIL through HEL in India and replacing with Vodafone BV, along with the transfer of shares there was also transfer of certain Interests of HTIL to Vodafone BV in order to complete the transaction and these Interests of HTIL is a capital assets which was held in India and was transferred to the Vodafone. Thus since the territorial nexus was established the provision of s195 IT Act was applicable on the transaction.

Again Aggrieved by the order of High court the Vodafone company approached the Supreme Court, The supreme court remanded the assessing officer (AO) over the jurisdiction issue whether the AO has a Jurisdiction to adjudicate the issue, to which AO affirms and passed an preliminary order u/s 201 of the IT Act.

The Vodafone company again approached the high court against the impugned order of the AO to which the Income Tax department contended on mainly two grounds, Firstly on the basis of sec 9 of the IT act, they contended that CGP is only a stock holding company and “underlying assets are

Situated i.e. in India .Further, HTIL had extinguished its right of control over HEL and extinguishment of „rights and entitlements‟ constituted as „Capital Assets‟.

Secondly, The term „any person‟ also includes „foreign company‟. Further, VIH has a presence in India on account of its shareholding and joint venture with another Indian telecom company. Based on the above two contentions the Indian taxation authority have a full territorial nexus over the Vodafone even if it is a foreign company. The high court Agreed with the contentions of Indian taxation authority and announced its judgement in favour of the Tax authorities.

So there are two law points which were primarily considered in this case which was to be decided by the Supreme Court, section 9 of the IT act and section 195 of the act.

Again an appeal was filed to the supreme court against the impugned order of the high court.

Supreme court observations

1. The SC adopted “look at” approach instead of “look through approach in order to interpret sec-9 of the I-T act, for fulfilling the requirements of sec 9 three things are mandatory „transfer‟, „existence of a capital asset‟ and „location of such assets in India‟ s, In this case, There is no existence of any existence of capital assets here in India or outside India, Further section 9 does not Include “underlying capital asset”

2. The SC observed that Vodafone had only acquired certain percentage of shares in HTIL which made them influence over HEL in terms of voting, nomination of directors and management rights. Hence, there was no extinguishment of rights. Moreover sale of shares of HEL was not made directly and it occurred indirectly by virtue of change of shareholding of HTIL.

3. Further Transfer of shares does not amount to separate entitlement of HEL shares and HEL capital asset should not be separated in order to satisfy conditions in sec-9.

4. The offshore transaction was between two foreign companies (non-residents in India) entered into on principal to principal basis. It is outside India’s territorial tax jurisdiction and hence not taxable in India so should not be subjected to withholding tax obligations in India.

Comments

The SC was right in its approach and since these type of transactions are commonly aimed in saving taxation in India and are practice, just because the amount of tax was 12000 crore, it does not change the law. The primary crux of these type of transaction are that since both the firms are foreign companies and also there was no involvement of any capital asset transfer, however since the company has “indirectly” acquired the capital assets in India that’s why the Sec9 is not applicable unless it is amended, Sec 195 does not have a wide scope as it applies on Resident companies and not on foreign companies .The Vodafone case was a precedent for tax saving tactics by the FII’s. However still the Indian government is in no loss position considering the jobs creation done by these FII’s, further the employees of these FII’s pay taxation in terms of crores. Which is enough to compensate the loss, but still the government is against this tax saving tactics and has announced a Finance Act-2012.

Finance Act-2012 and territorial nexus of Income tax Authorities

The Indian government after facing a defeat in Vodafone case have amended section 9 of the IT act which retrospectively amended the law and have inserted many provisions in including below mentioned clause-:

Explanation 5.—For the removal of doubts, it is hereby clarified that an asset or a capital

asset being any share or interest in a company or entity registered or incorporated outside

India shall be deemed to be and shall always be deemed to have been situated in India, if

the share or interest derives, directly or indirectly, its value substantially from the assets

located in India

.

Impact of the Amended clause on Vodafone judgement

Previously the scope of Section 9(i) was limited to “capital assets” and direct as well as indirect interest in it, by any Indian as well as foreign company, also the “capital asset” must be situated in India.

In the Vodafone case there was no involvement of capital assets. However the Interest on the capital assets were acquired through “shares” which were not earlier deemed to be as Capital Assets. That’s why the Vodafone was successful as Indian taxation authorities failed to prove transfer or entitlement of “capital Assets”. However the transaction of acquiring share does involve transfer of capital asset as Vodafone acquired full control over the management of HEL but it does not means that it has acquired the assets. The loopholes in the law help Vodafone to save the tax.

The territorial nexus of Indian Authorities were limited to involvement of “capital assets”, As far as “capital shares” are concerned they have no jurisdiction. In order to fill this void they have introduced the above mentioned explanation in a retrospective manner. The explanation will overrule the judgement of the Vodafone case in which the supreme court had clearly figured out that the transfer of share does not means separate entitlement of capital assets .The link between the capital shares and capital asset was clearly broken as both were separate entities in their respective spheres, but indirectly they both had a hidden link, the law was not clear to its point on this link as there was void.

Now with recent amendment, if the “capital shares” has a direct or indirect interest which is deriving in India on any “capital asset”, then the company acquiring that “capital shares” is deemed to be Indian.

Now Vodafone has acquired a capital share which is Indirectly linked to a capital asset which is in situated in India, However Vodafone did not acquired any direct or Indirect interest in capital asset but has acquired “capital share” which clearly are not “capital asset”, but the value of these “capital Share” is derived indirectly from the “capital assets” which are situated in India. Thus the liability on Vodafone arises as per the above mentioned amendment.

The Amendment of Section 9 overruled the SC judgement, since the company is now deemed to be a resident company; the provisions of Section 195 are now applicable, thereby increasing the nexus of the Indian taxation authority over the foreign company’s agreement.

The Amendment has clearly filled the void between the “capital Asset” and the “capital share”, if the value of “capital share” is proportional to the “capital asset” then the test has been established and the territorial nexus of the Indian taxing authorities will hold the neck of those who have purchased the share in capital assets, since the amendment is retrospective it will impact the Vodafone judgement.

Conclusion.

The amendment re-establishes the residential status of the foreign firms, even if they are directly not operating in the territorial limits of India, still they are liable. The amendment is aimed at discouraging the sentiments of foreign investors and is really a bad move by the government.

India is among the preferred place for investment and is looked forward by global investors and this type of step will taint the image of India as a preferred destination of investment, by increasing the territorial nexus of Indian taxation authority the step will further slowdown the economy of an already struggling economy.

Sec-9(i)- All income accruing or arising, whether directly or indirectly, through or from any business connection in India, or through or from any property in India, or through or from any asset or source of income in India, or through the transfer of a capital asset situate in India;

 Sec 195 (1) Any person responsible for paying to a non-resident, not being a company, or to a foreign company, any interest (not being interest on securities) or any other sum chargeable under the provisions of this Act (not being income chargeable under the head "Salaries" shall, at the time of credit of such income to the account of the payee or at the time of payment thereof in cash or by the issue of a cheque or draft or by any other mode, whichever is earlier, deduct income-tax thereon at the rates in force :

Sec 201 (1) If any such person and in the cases referred to in section 194, the principal officer and the company of which he is the principal officer does not deduct or after deducting fails to pay the tax as required by or under this Act, he or it shall, without prejudice to any other consequences which he or it may incur, be deemed to be an assessee in default in respect of the tax :Provided that no penalty shall be charged under section 221 from such person, principal officer or company unless the Assessing Officer is satisfied that such person or principal officer or company, as the case may be, has without good and sufficient reasons failed to deduct and pay the tax.

By-Nitish Banka

The 40th Year of Keshavnand Bharti Judgement

Since the inception of our constitution there have been doubts, vagueness about various provisions which are embodied in our constitution and supreme court has played a very significant role in interpreting these vague provisions and filling the void. And one of the most controversial provision was amendment of the constitution. The Amendment of the constitution has been there in Article 368 and basic purpose of this provision is to infuse flexibility of our constitution but bounds of this provision was not marked, However parliament was entitled to amend the constitution and also the procedure was also there in Art 368 but how much power is conferred in the parliament to amend the constitution was still under the shadow.

One of the important features are the fundamental rights, But they are part of the constitution. In Art 13 it is clearly mentioned that any law which abridges the fundamental right is void, But what about the constitutional amendment, The biggest question before the court for a long time was Can the fundamental rights can be amended and can be attenuated as per the wish and whims of the parliament? There have been different case laws to interpret this dilemma but none was concrete and in no time the decision of the Supreme Court got overruled by another.

Starting from very first amendment which was challenged by “shankari Lal V UOI  “ It was contended in this case that the “Law” defined in Art 13(2) is the same law which is to be amended by art 368 and if this “Law” abridges the fundamental rights it is void. The supreme court made it clear that the word “law” in art 13(2) is the ordinary law, But the “la w” which is to be amended by art 368 is constituent law and is outside the scope of Art 13(2), This meant if any provisions which may be inserted in the constitution is in violation of any of the fundamental rights is not void. This also meant that the parliament has an Inherent power to amend the fundamental rights and can even remove the fundamental rights.

But 20 years later the supreme court overruled the Shankari Prasad judgement in “Golak Nath V State of Punjab” The Parliament has no power to abridge or amend the fundamental rights  as fundamental rights are transcendental position under our constitution, and clear it’s stance that an Amendment is a law within the meaning of Art 13(2), The supreme court took a u turn on it’s earlier path and thus made two stance extremely opposite to each other.

Due to which the parliament in it’s 24^th amendment   parliament has inserted a provision in Art 368 “Nothing in Article 13 shall apply to any amendment made under this article” and hence overruled the Golak Nath judgement. Which was challenged by the Keshavnand Bharti case In this case the supreme court upheld the validity of 24^th Amendment which again raised the serious question again up to what extent the whole constitution can be Amended ?Can the parliament take away the fundamental rights by amending it? The court was in opinion of taking a middle path.

1. While affirming the Parliament can amend any of the provisions of the constitution as per the procedure in article 368.

2. However the power to amend is limited keeping in mind the Basic features of the constitution.

3. The basic feature includes secularism, socialism, equality, Federal character and separation of power.

4. The basic feature also includes fundamental rights and directive principles.

The court further held that the provision inserted in 24^th amendment is valid as it made what was implied in art 368 as express and does not abrogate any fundamental rights.

Making the decision more flexible the Supreme Court clearly mentioned that the fundamental rights can be abridged reasonably but cannot be abrogated. In order to preserve the basic features of the constitution the judgement was a Savior of our constitution. It preserved both rigidity and the flexibility, by inserting the bounds of “basic structure”. The “Basic Structure” hence forms a safety valve against the abrogation of the fundamental rights.

However some of the dissenting judges criticized the Doctrine of Basic Structure, They describe it vague as there was no subject matter that clearly specifies what “Basic structure” is and what is not?

However the landmark judgement of Keshavnand Bharti has kept the spirit of the constitution alive and prevented the misuse by the parliament against wipe off the constitution and thereby protecting the fundamental rights of the citizens.

By-: Nitish Banka

5 Things To Do Before You Even Think About Getting A Divorce

There are many steps to take to protect yourself in a divorce. This article will get you started. Your best bet is to talk to a lawyer before you do anything. 1. Talk to a Marriage Counselor or other professional who may be able to help you save your marriage. Even if you don't think there's hope for the marriage, "divorce counseling" can help you discover what went wrong, how to cope, and how to pick up the pieces and go on. Don't wait for your spouse to participate. If you don't know how to find a qualified counselor, our firm will be glad to recommend one or you can check out the directory of professionals at stayhappilymarried.com. Your employment, social or religious contacts might also provide leads. 2. Talk to an attorney before you do anything. Even if you don't end up hiring an attorney to handle your separation or divorce, you would be well advised to get as much information as you can before you even discuss divorce with your spouse. There's a lot to know about divorce in North Carolina?our laws are complex and even the simplest situation can be very confusing to families already in distress. Actions you take now may very well affect the outcome of your divorce (see #3) and you need to understand your options ahead of time?not some time down the road when it may be too late to alter the outcome. Click here to find attorneys who are well versed in the intricacies of North Carolina divorce law. 3. Do not move out of the marital home without talking to an attorney first. Leaving the house without a good reason may cause you to pay alimony or may result in your inability to collect alimony. If you leave the house, you may also be unable to return until after a court divides the property. This process might take more than a year. The best advice is to stay in the house until after you talk with an attorney unless your spouse is violent. If your spouse is violent, you must take all steps necessary to protect yourself and your children. 4. If you have been involved in any extramarital affairs, talk to a lawyer before you discuss this with your spouse or anyone else. In this case, honesty may not be the best policy. In addition to the fact that adultery is illegal in some states, admission of an affair can have other dire consequences. If your spouse is a candidate for alimony, any illicit sexual behavior on your part (during the marriage?which includes the time you are separated) could end up costing you thousands in additional alimony payments. 5. Take concrete steps to safeguard your assets before you and your spouse begin discussing divorce. One of these steps is to take possession of certain assets during separation, especially those assets you wish to be using, such as furniture and vehicles, and those assets that might be liquidated by your spouse, including precious gems and stones, other collectibles, cash, and bearer bonds. Another self-protective step is to file what is known as a Lis Pendens in the Deeds Office of any county where you and/or your spouse own real property. The lis pendens puts third parties on notice of your claim to have an interest in the real estate against which the lis pendens is docketed. The lis pendens is basically a notice of pending litigation that may affect real property. A properly recorded and served lis pendens clouds the title to the property, preventing an effective sale of the property behind your back. The rules regarding a lis pendens contain very specific requirements, all of which are spelled out in section 1-116 and the following sections of the North Carolina General Statutes. A third possible step to protect the assets of your marriage is to get an injunction restraining your spouse from transferring or otherwise disposing of any property covered by the restraining order. Your attorney can also use an injunction to get your separate property returned to you, where your separate property is in the possession of your spouse and the spouse refuses to give it to you. The equitable distribution statute also provides a means for you to obtain an interim distribution of marital property, pending a final resolution of the property matter. Such an interim allocation could, for instance, give you much needed funds on which to live. Other protective measures you might consider in your divorce planning include: (1) protecting your own credit rating by freezing or closing joint cards and by blocking your spouse's access to other joint credit such as a home equity loan; (2) closing joint bank accounts and opening accounts in your own, individual name; (3) changing the name of the responsible party on utility and other bills; and (4) spending where possible your spouse's separate property first, marital property next, and your own separate property last. While this list will help you get started on the right track, it is by no means a complete list of all the things you need to do and know if you are considering a divorce. For more information about the rights and duties of separating and divorcing husbands and wives visit http://www.rosen.com. You'll find a complete law library, downloadable divorce forms, a legal fee calculator, a child support calculator, lists of professionals who can help you and stories from people just like you who have survived divorce.

Misuse of Domestic Violence Act

The domestic violence act hereinafter referred as dv act which was incorporated in the year 2005, The main purpose of this act is to prevent woman only woman from domestic violence, from the bare reading of the definition of the act we can see that the term “aggrieved person” includes only women, means only the men can be prosecuted not the woman, In the 21^st century we treat women at par with men and there have been many incidences where a women are involved in insult, humiliation, verbal and emotional abuse to men. It is not a rare possibility that women are indulging in domestic violence against men but this is a reality, our constitution guarantees equality, means men and women must be equally treated, then why in dv act there are provisions for women only and not for men, why women are protected and why there is presumption that men is the only gender which can do cruelty, domestic violence on women, why not vice-versa.

The dv act has given an undue advantage to the women and it is the most lethal weapon which women can use against men to extort, exploit, and threaten men community just like terrorism. The dv act has provisions like right to residence regardless of legal right on the property, maintenance. The provision in law makes the law easily vulnerable to misuse. which is a fact statistics have shown that only 2% of all the cases have resulted in conviction and 98% of the cases are deemed to be fake and there is no provision in dv act if a fake case is lodged then there is no provision for punishment for the women. For the name of protection of women the prosecution of innocent men is against the rule of law, A women can misuse the law very easily like for example  A man can be booked under the DV act if she feels that she has been insulted. Insult is a relative term, which is totally left to her discretion. Interestingly, if she insults and abuses him verbally or even physically, he does not have any legal recourse in this law, even the minor differences in matrimonial ties could invoke the provisions of DV act, moreover the procedure of law is governed by CRPC that means a man even making a very light insult to a women is treated like a criminal. if the case is false the reputation of man and his family is tainted and there are no steps or legal protection available to men to protect his reputation . In other words this law treats men like sitting ducks.

For taking easy divorce and maintenance the DV act is the first weapon used by the women even if she is not subjected to any such type of domestic violence, even if the matter is sub-judice the men are obliged to pay maintenance to women, this means that punishment for men start as soon as false complaint is lodged, which is against the principles of natural justice where there is presumption of innocence.

The fact is DV act has failed to attend the problems faced by women and men on subject of domestic violence, the law is often misused then to be used. The need of the society is to make more gender neutral laws which treat men and women equally in the cases of domestic violence and not to induce fear in the minds of innocent people like most of the men and give an extortion tool to the other gender. The DV act is gender biased on the face of it, The DV act needs to be amended with more gender neutral provisions to prevent its misuse and to achieve gender equality and fair justice.

“An unjust law is itself a species of violence. Arrest for its breach is more so.”
Mahatma Gandhi