Differences between Law and Act

 Differences between Law and Act

By:

Adv. Vijay Sardana

Law	Act
The law is an outcome of the Act. A law is defined as an assemblage or collection of rules and regulations that are indispensable and must be followed	An Act is a decree that is passed or approved by the respective legislature i.e. in India’s case State Legislative Assembly or Parliament of India
Law holds its single purview over the larger picture means this has a wider scope.	An Act is a sub-set of Law mean more specific in its scope.
Law ensures that the people will strictly follow the defined rules and regulations	An Act is employed in specific situations meaning establishing regulations and rules in specified domains. An example of this is the Indian Companies Act which regulates the formation and functioning of companies or corporations in India.
Law is more generic in its nature of operations and is not that complicated to comprehend	Acts are conditional and specific depending on the domains they have been applied for.
Law can be enforced as it has been established by the regulatory procedures	An Act is represented by the bill it is passed for and will not be enforced until it becomes law
A law is defined to stop malpractices, maintain public order and most importantly protect Fundamental Rights	Acts are made to make people aware of certain rules and regulations that are in place. Sometimes reflects the aspiration of society as well.
A law is an established phenomenon, derived from the Act.	An Act is originally a bill which is proposed by the Parliament first and when it gets approval from the Lok Sabha and Rajya Sabha and the President as well, it becomes an act
Laws are under regulation by government authority and hold sovereignty in them.	Acts are provisions enacted by a legislative body or the government for the people understand the meaning of specific circumstances

The Constitution of India and Fundamental Duties of Citizens

By:

Vijay Sardana

Advocate & IIMA Alumnus

Techno-legal Expert & Corporate Advisor

Supreme Court of India, High Court and NGT

The fundamental duties of citizens were added to the constitution by the 42nd Amendment in 1976 under Article 51A Part 4A, upon the recommendations of the Swaran Singh Committee. 

Initially while drafting the Constitution of India fundamental duties were not part of the Constitution of India. The essential duties were inspired by the constitution of the USSR (now Russia). 

Facts about Fundamental Duties:

Fundamental Duties are categorised into two – Moral Duty & Civic Duty

1. Moral Duty: cherishing noble ideals of freedom struggle, they contain just a codification of tasks integral to the Indian way of life.

2. Civic Duty: respecting the Constitution, National Flag and National Anthem

Initially ten in number, the fundamental duties were increased to eleven by the 86th Amendment in 2002, which added a duty on every parent or guardian to ensure that their child or ward was provided opportunities for education between the ages of six and fourteen. 

The other fundamental duties obligate all citizens to respect the national symbols of India, including the constitution, to cherish its heritage, to preserve its composite culture and assist in its defence. 

They also obligate all Indians to promote the spirit of common brotherhood, protect the environment and public property, develop scientific temper, abjure violence, and strive towards excellence in all spheres of life. 

Importance of Fundamental Duties- Part IV-A

Fundamental Duties are an inalienable part of fundamental rights. The importance of Fundamental Duties is given below:

1. They remind Indian Citizens of their duty towards their society, fellow citizens and the nation

2. They warn citizens against anti-national and anti-social activities

3. They inspire citizens & promote a sense of discipline and commitment among them

4. They help the courts in examining and determining the constitutional validity of a law

The violation of fundamental duties is not a punishable offence unless it is backed by Legislative enactments like the Prevention of Insults to National Honour Act, 1971, Forest Act, Environment Act, Pollution Act, and others.

The Supreme court has ruled that these fundamental duties can also help the court to decide the constitutionality of a law passed by the legislature. 

There is a reference to such duties in international instruments such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights and Article 51A brings the Indian constitution into conformity with these treaties.

The fundamental duties noted in the constitution are as follows:  It shall be the duty of every citizen of India — 

a) To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;

b) To cherish and follow the noble ideals which inspired our national struggle for freedom; 

c) To uphold and protect the sovereignty, unity and integrity of India; 

d) To defend the country and render national service when called upon to do so; 

e) To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women; 

f) To value and preserve the rich heritage of our composite culture; 

g) To protect and improve the natural environment including forests, lakes, rivers, and wildlife and to have compassion for living creatures; 

h) To develop the scientific temper, humanism and the spirit of inquiry and reform; 

i) To safeguard public property and to abjure violence; 

j) To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement; 

k) Who is a parent or guardian, to provide opportunities for education to his child, or as the case may be, ward between the age of six to fourteen years. The duty was included in the list of fundamental duties by 86th Amendment to the constitution of India in the year 2002.

The Supreme Court has used the Fundamental Duties to uphold the Constitutional validity of statutes which seek to promote the objects laid out in the Fundamental Duties.

These Duties have also been held to be obligatory for all citizens, subject to the State enforcing the same business valid law. The Supreme Court has also issued directions to the State in this regard, with a view toward making the provisions effective and enabling citizens to properly perform their duties.

Criticism of Fundamental Duties

The Fundamental Duties mentioned in Part IVA of the Constitution have been criticised on the following grounds:

1. They have been described by the critics as a code of moral precepts due to their non-justiciable character. Their inclusion in the Constitution was described by critics as superfluous. This is because the duties included in the Constitution as fundamental would be performed by the people even though they were not incorporated into the Constitution.

2. Some of the duties are vague, ambiguous, and difficult to be understood by the average person.

3. The list of duties is not exhaustive as it does not cover other important duties like casting votes, paying taxes, family planning and so on. In fact, the duty to pay taxes was recommended by the Swaran Singh Committee.

The critics said that the inclusion of fundamental duties as an appendage to Part IV of the Constitution has reduced their value and significance. They should have been added after Part III to keep them on par with Fundamental Rights.

Swaran Singh’s Committee recommended more than 10 Fundamental Duties, however, not all were included in the Constitution. Those duties recommended by the committee which were not accepted were:

1. Citizens are to be penalised/punished by the parliament for any non-compliance with or refusal to observe any of the duties.

2. The punishments/penalties decided by the Parliament shall not be called in question in any court on the ground of infringement of any of Fundamental Rights or on the ground of repugnancy to any other provision of the Constitution.

3. Duty to pay taxes.

The Fundamental Duties are confined to Indian citizens only and do not extend to foreigners unlike a few Fundamental Rights

They are also nonjusticiable like the Directive Principle of State Policies. There is no legal sanction against their violation.

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Why are Indian Courts not adopting Bangalore Principles of Judicial Conduct?

Why are Indian Judiciary not adopting the Globally accepted "Bangalore Principles of Judicial Conduct"?

The judicial Integrity Group by the UN system was formed to regain the confidence of the people in the judicial system around the world.
The Judicial Integrity Group took two major decisions in its very first meeting.
First, it agreed that the principle of accountability demanded that national judiciaries assume an active role in strengthening judicial integrity by effecting systemic reforms in line with their judiciaries’ competence and capacity. 
Second, it recognized the urgent need for a universally acceptable statement of judicial standards that was consistent with the principle of judicial independence and that could be respected and ultimately enforced by national judiciaries without the intervention of either the executive or legislative branches of Government. 
The participating judges emphasized that, by adopting and enforcing appropriate standards of judicial conduct among its members, the judiciary had the power to take a significant step towards earning and retaining the respect of the community. 
Accordingly, they requested that the codes of judicial conduct adopted in some jurisdictions be analysed and a report be prepared by the coordinator of the Judicial Integrity Group, Nihal Jayawickrama, concerning 
(a) the core considerations that recur in such codes; and 
(b) the optional or additional considerations that occur in some, but not all, such codes and that may or may not be suitable for adoption in specific countries.
According to the President of the UK Supreme Court, the Guide to Judicial Conduct (2019) is necessary because. , Every court should have a Code of Judicial Conduct that sets out the standards of ethical conduct to be expected of the Court. Such a Code serves several purposes. It provides guidance to the members of the Court. It informs those who use the Court of the standards that they can reasonably expect of its judges. It explains to members of the public how judges behave and should help to secure their respect and support for the judiciary.
Not only many countries have adopted the Bangalore Principles, but others have even modelled their own principles of judicial conduct on them. 
International organizations have also looked at them in favour and endorsed them. The United Nations Economic and Social Council, in its resolution 2006/23 of 27 July 2006, invited States Members of the United Nations to encourage their judiciaries, in line with their domestic legal systems, to take into consideration the Bangalore Principles when reviewing or developing rules on the professional and ethical conduct of the members of the judiciary. 
The United Nations Office on Drugs and Crime (UNODC) has actively supported the Bangalore Principles, which have also been recognized by bodies such as the American Bar Association and the International Commission of Jurists. The judges of the member states of the Council of Europe have also given the Bangalore Principles their favourable consideration. The Bangalore Principles and the amended commentary were adopted at those meetings and thereby given increased weight and authority. 
The Bangalore Principles, an instrument that is of immense potential value, not only for the judiciaries of all nations but also for the citizens and public and for all those concerned with laying down a firm foundation for a global judiciary of unimpeachable integrity. 
Every citizen and public representative of India must ask the following:

• The question is when the Indian judiciary will adopt these guidelines? 

• How long we will continue to work on outdated 1999 guidelines which have not inspired any confidence in the common people of India. 

• Why do our law colleges not discuss and teach Bangalore Principles of Judicial Conduct?

The people of India waiting for a reply from the Hon'ble Chief Justice of India.

In democracy and in civilized societies, a judiciary of undisputed integrity is the bedrock of democracy and the rule of law. Even when all other protections fail, the judiciary provides a bulwark to the public against any encroachments on rights and freedoms under the law. These observations apply both domestically—in the context of each nation-State—and globally, for the global judiciary is seen as one great bastion of the rule of law throughout the world. Ensuring the integrity of the global judiciary is thus a task to which much energy, skill and experience must be devoted. How much effort our Judges in Supreme Court and High courts are doing in this direction should be studied by all law colleges and PhD researchers. Parliamentary standing committees must investigate this aspect.

This is precisely what the Judicial Group on Strengthening Judicial Integrity (the Judicial Integrity Group) has sought to do since 2000. The Group commenced as an informal gathering of chief justices and superior court judges from around the world who combined their experience and skill with a sense of dedication to this noble task. Since then, the Group’s work and achievements have grown to a point where they have made a significant impact on the global judicial scene. 

The principles were first worked out only tentatively but have increasingly been accepted over the past few years by the different sectors of the global judiciary and by international agencies interested in the integrity of the judicial process. As a result, the Bangalore Principles of Judicial Conduct are seen more and more as a document which all judiciaries and legal systems can accept unreservedly. 

In short, these principles give expression to the highest traditions relating to the judicial function as visualized in all cultures and legal systems. Reaching agreement on these core principles has been difficult but the Judicial Integrity Group’s unwavering commitment to achieving a result which would command universal acceptance has allowed it to surmount the barriers in its path.

Courts keep asking when India will adopt police reforms, and now people are asking when Courts will adopt the Bangalore Principles of Judicial Conduct?

गेहूं और आटे का दाम घटाने के लिए सरकार कुछ बड़ा करने वाली है |

गेहूं और सरकार

गेहूं और आटे का दाम घटाने के लिए सरकार कुछ बड़ा करने वाली है |

Status of Animal Welfare reflects the status of Human Civilization > World Animal Day Special

On the occasion of “World Animal Day”

Status of Animal Welfare reflects the status of Human Civilization

By:
Vijay Sardana
Advocate, Supreme Court of India

What can be a better example of Animal Welfare than this?

In the Bhagavad-gītā, God says that
"All living entities are My part and parcels."
Manaḥ ṣaṣṭhānīndriyāṇi prakṛti-sthāni karṣati (BG 15.7)

Indian religious scriptures and historical texts are full of examples that the human-animal bond is a mutually beneficial and dynamic relationship between people and animals that is influenced by behaviours considered essential to the health and well-being of both. 

The activities of ancient Indians were woven around the animals. Therefore, they knew the happenings of the animal world as much as today's ardent students of zoology and veterinary science. This vast knowledge has been recorded in the scriptures of the time. The Upanishads contain detailed descriptions of horses and cattle. The Garudapurana contains life-histories of fishes and turtles. There are also religious books dedicated to a specific animal. Nagamahdimya, Nandi-purdoa, Mayiratrahimya and Pashu-puriltia are only a few of them. These writings are older than other scriptures of the world; they contain very modern concepts such as the origin of life, organic evolution and environmental science. 

The bond includes but is not limited to the emotional, psychological, and physical interactions of people, animals, and the environment.  The role of society in the human-animal bond is to maximize the potential of this relationship between people and animals and specifically to promote the health and well-being of both. The emperors, kings and queens adopted different animals as their emblems.

Our History can teach us a lot about animal welfare

In todays’ world, Animal welfare is a complex and multifaceted subject with scientific, ethical, economic, cultural, social, religious and political dimensions. It is attracting growing interest from civil society.

Unfortunately, nowadays, social media is flooded with messages about cruelty against animals, illegal slaughtering, inhumane ways of transportation, pictures of starving animals or eating garbage and plastic. The reaction of the people to these pictures clearly indicates that society is concerned about animal welfare. That is why we have many court orders and laws to protect animal welfare.

World Animal Day and Animal Welfare Boards are spreading messages in this regard and animal lovers have a reason to cheer. 

What is Animal Welfare in modern scientific terms?

Protecting an animal's welfare means providing for its physical and mental needs. There are numerous perspectives on animal welfare that are influenced by a person's values and experiences. There are also various means of measuring animal welfare, including, but not limited to, health, productivity, behaviour, and physiological responses.

Animal welfare means how an animal is coping with the conditions in which it lives. An animal is in a good state of welfare if, as indicated by scientific evidence, it is healthy, comfortable, well-nourished, safe, able to express innate behaviour, and if it is not suffering from unpleasant states such as pain, fear, and distress. Good animal welfare requires disease prevention and veterinary treatment, appropriate shelter, management, nutrition, humane handling, and humane slaughter. 

Animal welfare refers to the state of the animal; the treatment that an animal receives is covered by other terms such as animal care, animal husbandry, and humane treatment. 

Animal welfare is the human responsibility

Ensuring animal welfare is a human responsibility that includes consideration for all aspects of animal well-being, including proper housing, management, nutrition, disease prevention and treatment, responsible care, humane handling, and, when necessary, humane euthanasia.

Animal Welfare Principles in modern Animal Husbandry

Many authorities for the health and welfare of animals, offer the following eight integrated principles for developing and evaluating animal welfare policies, resolutions, and actions.

• The responsible use of animals for human purposes, such as companionship, food, fibre, recreation, work, education, exhibition, and research conducted for the benefit of both humans and animals, is to be consistent with humanity.

• Decisions regarding animal care, use, and welfare shall be made by balancing scientific knowledge and professional judgment with consideration of ethical and societal values.

• Animals must be provided water, food, proper handling, health care, and an environment appropriate to their care and use, with thoughtful consideration for their species-typical biology and behaviour.

• Animals should be cared for in ways that minimize fear, pain, stress, and suffering.

• Procedures related to animal housing, management, care, and use should be continuously evaluated, and when indicated, refined or replaced.

• Conservation and management of animal populations should be humane, socially responsible, and scientifically prudent.

• Animals shall be treated with respect and dignity throughout their lives and, when necessary, provided a humane death.

• The veterinary profession shall continually strive to improve animal health and welfare through scientific research, education, collaboration, advocacy, and the development of legislation and regulations.

How to improve the future of Animal Welfare in Modern India?

• The establishment, implementation, and support of principles and standards designed to continuously improve animal welfare is a complex dynamic involving animal needs, human needs, societal expectations, and environmental and other sustainability concerns. 

• Actions employed to improve animal welfare should be informed by veterinary, ethological, ecological, economic, and ethical considerations. 

• Veterinarians and livestock farmers are, and must continually strive to be, the leading advocates for animal welfare in a continually evolving society.

• Livestock farmers, Livestock value chain participants, veterinarians, veterinary medical associations, animal control agencies, and animal welfare organizations should collectively promote responsible animal ownership and humane care of animals.  

• Law must consider Immunity from liability in any civil, criminal, or state action to any veterinarian and farmer who reports, in good faith, a suspected case of animal abuse or neglect to the proper authorities. 

What should be done by Indian authorities to ensure animal welfare?

1. Two thousand-year-old Panchatantra contains numerous stories in which the animals have been given prominence, and should be mandatory for all primary schools.

2. Creation of animal welfare standards for shelter houses so that the stray animals do not become a cause of concern for citizens and farmers.

3. Crowdfunding sources can be designed to ensure sufficient funding for these shelter houses.

4. Local communities should be encouraged and trained to take care of stray animals, in place of external NGOs. Local communities can act as guardians of the shelter and economic gains from these animal shelters should be dedicated for animal welfare activities within the village community, only for common causes related to animal welfare only like construction of water points, feeding points, community biogas plants at the shelter house, free immunization and vaccination for village animals, etc.

5. Teaching about animal welfare is key in providing a complete education in veterinary medicine. The Model animal welfare syllabus can be designed by the Veterinary Council of India and can serve as a guide to meet the core competencies that veterinarians need to learn before graduating.

Your inputs and suggestions can improve the animal welfare status in India.

Feel free to share and comment.

Why are “White-collar Crimes” growing with the growing economy? An Analysis.

 Why are “White-collar Crimes” growing with the growing economy? An Analysis.

By:

Vijay SARDANA FICA, MIMA

PGDM (IIM, Ahmedabad), LLB, M.Sc. (Food Tech) (CFTRI), B.Sc. (Dairy Tech)

PGD in Arbitration, Intl. Trade Laws & Alt. Dispute Resolution, IPR (WIPO), Justice (Harvard)

Advocate, Delhi High Court & NGT

Arbitrator, Indian Council of Arbitration

Contents

• What motivated me to write this series?

•  Who are the criminals in white-collar crime?

•  Who are the victims of these white-collar crimes?

• Types of White-Collar Crimes

• Typical white-collar crimes in the commercial world

• Reasons for the growth of white-collar crimes

• Role of investigation agencies

• What should you do?

• What next?

 What motivated me to write this series?

In recent times, many friends and business people have approached me to share their business disputes and related issues. In most cases, it was a typical white-collar crime.

The only reason why they all were suffering was due to many reasons.

Some of them were:

• Long term friendship or trust with the other party

• Ignorance about the implications of the languages used in the agreements.

• Casual attitude and not reading the contract carefully which is modified by the other party.

• Not aware of how to draft a right and binding contract

• Cut-paste attitude in drafting without understanding the implications.

• Lack of performance parameters in the agreement

• In many cases, extreme volatility in the market also forces people to escape from their commitments and commit a white-collar crime under one pretext or the other.

• Manipulators used the fake test reports and supplied the products.

• Products adulterated with certain external items to manipulate the test results of substandard products – like protein content, etc.

• There are many other creative methods of crime in the securities and commodities market.

And many more ways to commit white-collar crime.

Origin of the term - "White-collar crime"

In criminology literature, blue-collar crime is any crime committed by an individual from a lower social class instead of white-collar crime which is associated with the crime committed by someone of a higher-level social class. While blue-collar crime has no official legal classification, it holds to a general net group of crimes. These crimes are primarily small scale, for immediate beneficial gain to the individual or group involved in them. This can also include personal related crimes that can be driven by immediate reaction, such as during fights or confrontations. These crimes include but are not limited to personal fight, narcotic production or distribution, sexual assault, theft, burglary, assault, or murder, etc.

White-collar crime is "a crime committed by a person of respectability and high social status in the course of their occupation".

Reportedly coined in 1939 the term white-collar crime is now synonymous with the full range of frauds committed by business and government professionals. These crimes are characterized by deceit, concealment, or violation of trust and are not dependent on the application or threat of physical force or violence. The motivation behind these crimes is financial—to obtain or avoid losing money, property, or services or to secure a personal or business advantage.

In many court cases or cases in the tribunals, the author has noticed many creative ways of doing frauds. These will be discussed in future articles.

The purpose of this blog is to make you aware of the types of white-collar crimes so that you can protect yourself and your organization as well. To know the update, follow this blog and the author on various social media platforms.

Who are the criminals in white-collar crime?

The term "white-collar crime" refers to financially motivated, nonviolent crime committed by individuals, businesses, and government professionals.

The term white-collar crime is now synonymous with the full range of frauds committed by business executives and government professionals. These crimes are characterized by deceit, concealment, or violation of trust. These crimes are not dependent on the application or threat of physical force or violence.

What is the motive behind the white-collar crime?

The motivation behind these crimes is generally financial — to obtain or avoid losing money, property, or services or to secure a personal or business advantage.

Who are the victims of these white-collar crimes?

These are not victimless crimes, a single scam can destroy a company, devastate families by wiping out their life savings, or cost investors billions of dollars (or even all three).

Today’s fraud schemes are more sophisticated than ever, and the many investigating agencies have dedicated themselves to using their skills to track down the culprits and stop scams before they start.

Types of White-Collar Crimes

In investigating agencies white-collar crime work integrates the analysis of intelligence with its investigations of criminal activities such as:

• Bank fraud

• Corporate fraud

• Election law violations

• Embezzlement

• Financial institution fraud

• Fraud against the government

• Health care fraud

• Insurance Fraud

• Mass marketing fraud

• Money laundering

• Mortgage fraud

• Public corruption

• Securities and commodities fraud

• Taxes related fraud

Typical white-collar crimes in the commercial world

 Some of the common white-collar crimes in the commercial world are:

• Adulteration

• Bribery

• Copyright infringement

• Cybercrime

• Embezzlement

• Fake products

• Forgery

• Fraud

• Identity theft

• Insider trading

• Intellectual property theft

• Labour racketeering

• Misleading claims

• Money laundering

• Ponzi schemes

• Stock market frauds

• Unfair Trade Practices

• Wage theft

Reasons for the growth of white-collar crimes

• Easy access to sensitive information

• The greed of people in position and power

• Growing competition and growing pressure on performance

• Lack of capability among enforcement agencies

• Lack of deterrence like very negligible penalties and punishments

• Lack of education and training on prevention

• Lack of proper laws to prevent such crimes.

• Peer groups and industry associations not objecting to unfair business practices indirectly encouraging an unethical culture in business.

• Return from crime is higher than proposed punishments.

• Slow Court procedures indirectly provide financial incentive to undertake crime.

• Use of sophisticated technologies as a powerful tool for various crimes.

• White-collar crime overlaps with corporate crime.

Role of investigation agencies

The investigating agencies generally focus on complex investigations—often with a nexus to organized crime activities—that are international, national, or regional in scope and where the investigating agencies can bring to bear unique expertise or capabilities that increase the likelihood of successful investigations.

The investigating agencies special agents work closely with other law enforcement and regulatory agencies such as the Income Tax departments, Corporate Affairs, Securities Exchanges, Commodity Exchanges, Customs Revenue Service, Narcotics Department, Immigration Departments, Postal & Telecommunication departments, Crimes Detection & Law Enforcement Networks within and outside the country, among others, targeting sophisticated, multi-layered fraud cases that harm the economy.

What should you do?

If you are part of the commercial world, there can be many ways you can be cheated or trapped.

In many cases, the author has personally witnessed the following:

• Additional cost for rectification

• Competitors may exploit the opportunity to hurt the brand

• Disruption in project execution

• Disruption in supplies

• Increased liabilities with the bankers and financial institutions

• Internal disputes within the company

• Land-up with sub-standard products and services

• Litigation between the parties

• Litigations from your buyers due to breach of contract

• Loss of business relations

• Loss of reputation in the market

• Loss of time and business opportunity

• Many key management people leave the company.

• Non-compliance with Regulatory commitments

• Non-payment for the supplies

• Production loss

• Serious Corporate Governance issues

• Unwanted Investigations

And there can be many more implications.

What next?

The best way to minimize these white-collar crimes is to create mass awareness and build safeguards and preventive approaches.

In future articles, I will share some interesting live cases and the learning from them. Hope you will join the discussion.

It is simple, please follow the blog and the author on social media platforms so that you do not miss out on the interesting analysis.

If you are the victim of any such situation, feel free to contact me to share your experience, all information will be kept confidential.

Disclaimer: The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.