Laws Enacted in 2015: A Snapshot
The Act amends the Negotiable Instruments Act, 1881 and replaces the Negotiable Instruments (Amendment) Ordinance, 2015 which was promulgated on June 15, 2015. It stipulates that in case of a cheque being dishonored:
- If the cheque is delivered for collection to the account of the payee (person who receives the cheque), the jurisdiction lies in the area of the bank branch where the payee maintains an account, or
- If the payee presents a cheque to a bank in any other way, the jurisdiction lies in the area of the bank branch where the drawer (person who writes the cheque) maintains an account. (Section 142(2))
It further provides that if the payee has filed a complaint against the drawer in a court with appropriate jurisdiction, all subsequent complaints against that person regarding cheque bouncing will be filed in the same court, irrespective of whether the cheque was delivered for collection or presented at a bank within the territorial jurisdiction of that court. (Section 142A)
The Act also amends the definition of ‘cheque in the electronic form’. It is defined to mean a cheque drawn in electronic form by using any computer resource and signed in a secure system with digital signature (with or without biometrics signature) and asymmetric crypto system or with electronic signature, as the case may be. (Section 6) Further, the definitions of ‘computer resource’, ‘digital signature’, ‘electronic system’ and ‘asymmetric crypto system’ are amended to be the same as those assigned to them in the Information Technology Act, 2000.
The Act replaces the ordinance which was promulgated in December 2014. It makes Part I of the Act, which applies to matters where the place of arbitration was India, to international commercial arbitrations as well, even if the place of arbitration is outside India. (Section 2(2)) It changes the relevant Court for all arbitration matters to the relevant High Court in case of International Commercial Arbitrations. (Section 2(1))
Besides pegging the time period for disposal of cases by a Court at one year, it also makes provision for fast track procedure for arbitration, which would necessitate rendering of an award within 6 months. (Section 29A)
Another significant feature of the Act is that it provides additional grounds of contravention of the fundamental policy of Indian Law and conflict with the notions of morality or justice, in addition to the grounds already specified in the Act for setting aside an arbitral award. (Section 34 (2))
You may read: Amendment of Indian Arbitration Act: A Sigh of Relief for the Indian Arbitration Professionals and Clients! By Anil Xavier
The Act replaces the ordinance which was promulgated in October 2015. It provides for creation of Commercial Courts, equivalent to district courts, which may be set up in all States and Union Territories, by the State Governments after consulting with their respective high courts. Setting up of Commercial Divisions has been made possible in those High Courts which exercise ordinary original civil jurisdiction, that is, the High Courts of Delhi, Bombay, Calcutta and Madras.
The Commercial Appellate Division is empowered to hear appeals relating to a commercial dispute, filed in a High Court against the orders of Tribunals like the Competition Appellate Tribunal, Debt Recovery Tribunal, Intellectual Property Appellate Tribunal, Company Law Board or the National Company Law Tribunal, Securities Appellate Tribunal, and Telecom Dispute Settlement and Appellate tribunal. The minimum pecuniary jurisdiction of the Commercial Courts and Commercial Division is stipulated as one crore rupees.
The Act make provisions to deal with the problem of the Black money that is undisclosed foreign income and assets, the procedure for dealing with such income and assets and to provide for imposition of tax on any undisclosed foreign income and asset held outside India. It functions as an addition to the Prevention of Money Laundering Act, 2002.
It applies a flat rate of 30 per cent to undisclosed foreign income or assets of the previous assessment year. (Section 3(1)) No exemption, deduction or set off of any carried forward losses (as provided under the IT Act) would apply. This would apply from April 1, 2016 onwards.
It provided for a one-time compliance opportunity to persons who have any undisclosed foreign assets (for all previous assessment years) will be provided for a limited period. Such persons were permitted to file a declaration before a tax authority, and pay a penalty at the rate of 100%. The compliance window was opened from July 1, 2015 to September 30, 2015. Tax at the rate of 30 percent and penalty at the rate of 30 percent is to be paid by December 31, 2015, according to the government statement.
You may read: Lok Sabha passes Black Money Bill, Jethmalani terms it totally worthless and is a kind of Amnesty Scheme by M.A. Rashid
The Act amends the Citizenship Act, 1955, which regulates the acquisition and determination of citizenship after commencement of the Constitution. While the Act provided that any person who is/has been a citizen of Pakistan or Bangladesh or any other country which is notified by the central government will be ineligible to apply for Overseas Citizenship of India, the amendment extends this provision to cover persons whose parents/grandparents/ great-grandparents were citizens of any of the above countries. (Section 7A)
The Bill also introduces a provision for registration of a person as an Overseas Citizen of India cardholder under ‘special circumstances’, even if s/he does not satisfy any of the listed qualifications.
Further, it empowers the Central Government to notify that Persons of Indian Origin cardholders shall be considered to be Overseas Citizen of India cardholders from a specified date. Persons of Indian Origin enjoy fewer benefits than Overseas Citizens of India. (Section 7A (3))
The Bill provides that where a person renounces their overseas citizenship, their spouse shall also cease to be an Overseas Citizen of India (Section 7C). It also empowers the Central Government to cancel the Overseas Citizenship of India card where it is obtained by the spouse of an Indian citizen or Overseas Citizen of India cardholder, if: (i) the marriage is dissolved by a court, or (ii) the spouse enters into another marriage even while the first marriage has not been dissolved. (Section 7D (f))
The Act amends the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. The amendment act widens the definition of public premises. It also introduces timelines for eviction of unauthorized occupants. The Act stipulates 15 days for vacation of the premises, after such order is passed by the Estate Officer. This period may be extended if the Estate Officer feels there are compelling reasons which prevent a person from vacating the premises in 15 days. (Section 5 (1))
Further, if an Estate Officer receives information that a person is in unauthorized occupation of the premises, they must make an order, within seven days of receiving this information, directing persons who have occupied the premises to show cause as to why they should not be evicted. However, any delay in issuing this order will not invalidate proceedings. (Section 4 (1))
In case a period is in arrears of rent payable, the Estate Officer may order that they pay rent or damages, after issuing a notice asking the person to explain why such as order should not be made. The explanation must be provided within seven days of the notice. (Section 7(3))
The Act provides for a period of one month for disposal of an appeal from the Estate Officer’s orders. (Section 9(4))
The Act amends the Motor Vehicles Act, 1988. The Act provides for application of provisions of the Principal Act to e-cart and e-rickshaw. E-kart and e-rickshaws are defined to mean special purpose battery powered vehicles of power not exceeding 4000 watts, having three wheels for carrying goods or passengers, as the case may be, for hire or reward, manufactured, constructed or adapted, equipped and maintained in accordance with such specifications, as may be prescribed in this behalf.
It however exempts e-karts and e-rickshaws from Section 7(1) which stipulates that a learner’s license cannot be granted to a person unless s/he has held a driving license to drive a light motor vehicle for at least one year.
The Act amends Constitution (Scheduled Castes) Order, 1950 to modify the list of Scheduled Castes in the States of Haryana, Karnataka and Odisha and the Constitution (Dadra and Nagar Haveli) Scheduled Castes Order, 1962. The President is empowered by Article 341 of the Constitution of India to specify castes which will be deemed as Scheduled Castes through a notification, as also empowers the Parliament to include or exclude castes from the list of scheduled Castes. The Act adds the following communities to the list of Scheduled Castes:
- Haryana: Kabirpanthi Julaha
- Karnataka: Bhovi, Od, Odde, Vaddar, Waddar, Voddar, Woddar, Bovi (NonBesta), Kalluvaddar, Mannuvaddar
- Odisha: Dhoba, Dhobi, Rajak, Rajaka, Dom, Dombo, Duria Dom, Adhuria Dom, Adhuria Domb, Katia, Khatia, Kela, Sapua Kela, Nalua Kela, Sabakhia Kela, Matia Kela, Gaudia Kela, Khadala, Khadal, Khodal, Turi and Betra
- Dadra and Nagar Haveli: Chamar, Rohit
The Act also updates the name Uttaranchal to Uttarakhand in this list.
The Act amends the Insurance Act, 1938; the General Insurance Business (Nationalization) Act, 1972; and the Insurance Regulatory and Development Authority Act, 1999.
The Act, among other things, stipulates that shareholding by a foreign company (direct and indirect) should not exceed 49% of paid-up capital of an Indian insurance company. It makes this cap inclusive of foreign portfolio investments and states that the companies should be Indian owned and controlled. (Section 2 (7A) of the Insurance Act)
It also provides a separate definition for ‘health insurance business’ as the effecting of contracts which provide for sickness benefits or medical, surgical or hospital expense benefits, whether in-patient or out-patient travel cover and personal accident cover. (Section 2 (6C) of the Insurance Act) Minimum paid-up capital requirement for a person exclusively in the health insurance business has been increased from 50 crore to 100 crore. (Section 2 (8A) of the Insurance Act)
It increases from 2 years to 3 years, the time period for calling into question a life insurance policy on the ground of misstatement. (Section 45 (1) of Insurance Act)
The four public sector general insurance companies, presently required as per the General Insurance Business (Nationalization) Act, 1972 (GIBNA, 1972) to be 100% government owned, are now allowed to raise capital, keeping in view the need for expansion of the business in the rural and social sectors, meeting the solvency margin for this purpose and achieving enhanced competitiveness subject to the Government equity not being less than 51% at any point of time. (Section 10B of General Insurance Business (Nationalization) Act, 1972)
The Act omits Section 25 of the General Insurance Business (Nationalization) Act, 1972 which restrained foreign insurers from issuing insurance policies in India without prior government permission.
It empowers the IRDA to withhold a registration of a foreign insurer, in addition to the power of cancelling it, if they have been debarred by law or practice of his country to carry on insurance business. (Section 3 of Insurance Act) This provision also includes any foreign company engaged in re-insurance business through a branch established in India. It also empowers the IRDA to suspend or cancel registration wholly or in part, when the transfer or amalgamation has happened without the approval of the authority. (Section 4 of the Insurance Act)
The Act amends the Mines and Minerals (Development and Regulation) Act, 1957. It adds a new Fourth Schedule to the Act, incorporating bauxite, iron ore, limestone and manganese ore as notified minerals. It also introduces the prospecting license-cum-mining lease, which is a two stage-concession granted for the purpose of undertaking prospecting operations followed by mining operations. (Section 2 (ga)) Further, it increases the mining lease period for all minerals other than coal, lignite and atomic minerals, from 20 years to 50 years. (Section 8A (2))
It provides for the creation of a District Mineral Foundation (DMF) and a National Mineral Exploration Trust (NMET). The DMF is to be established by the state government for the benefit of persons in districts affected by mining related operations. The NMET shall be established by the central government for regional and detailed mine exploration. Licensees and lease holders shall pay the DMF an amount not more than one-third of the royalty prescribed by the central government, and the NMET two percent of royalty.
The Act replaced two ordinances issued by the government - the first on October 21, 2014 and the other in December, 2014, after the apex court cancelled the allocation of 214 blocks since 1993.
All the 204 mines whose allocation was cancelled by the Supreme Court, are defined in the act as ‘Schedule-I coal mines’. Out of these, the 42 mines which were already producing and ready to produce coal were defined as ‘Schedule-II coal mines’. Other 32 coal mines which are at various stages of development were defined as Schedule-III coal mines. These coal mines are meant for specified end-use and the Central Government has been empowered to move mines from Schedule I to schedule-III.
The new Act has provisions for allocation of coal mines through a transparent bidding process i.e. E-auction, in order to ensure the continuity in coal mining operations and promotion of optimum utilization of coal resources.
The Act also facilitates E-auction of coal blocks for private companies for captive use and allots mines directly to state and central Public Sector Undertakings (PSUs). It contains provisions that propose strong measures for rehabilitation and compensation for displaced persons. It further enables sale of coal especially to small, medium and cottage industries which will increase employment & incomes in these sectors.
The Act amends the Andhra Pradesh Reorganization Act, 2014. The Bill increases the strength for the Legislative Council for Andhra Pradesh to 58 members. In doing so, it increases the number of members to be elected by members of municipalities, district boards and other local authorities to 20 members. The number of members to be elected by members of the State Legislative Assembly has been increased to 20 and to be nominated by the Governor to 8.
The Act amends the Regional Rural Banks Act, 1976. It removes the 5 year limit over the responsibility of Regional Rural Banks to provide managerial and financial assistance, thus allowing such assistance to continue beyond this duration.
The Act raises the amount of authorized capital of each RRB to INR 2,000 crore and states that it cannot be reduced below Rs one crore. Further, it allows RRBs to raise their capital from sources other than the Central and State Governments, and sponsor banks. In such a case, the combined shareholding of the Central Government and the sponsor bank cannot be less than 51%. Additionally, if the shareholding of the State Government in the RRB is reduced below 15%, the Central Government would have to consult the concerned State Government.
The Act further states that any person who is a director of an RRB is not eligible to be on the Board of Directors of another RRB. It also adds a provision for directors to be elected by shareholders based on the total amount of equity share capital issued to such shareholders. If the equity share capital issued to shareholders is 10% or less, one director shall be elected by such shareholders. Two directors shall be elected by shareholders where the equity share capital issued to them is from 10% to 25%. Three directors shall be elected in case of equity share capital issued being 25% or above. If required, the central government can also appoint an officer to the board of directors to ensure effective functioning of the RRB. (Section 9(1) (f))
The Act amends the Warehousing Corporations Act, 1962. It does away with the Central Government’s responsibility of being a financial guarantor to the central warehousing corporation. Accordingly, provisos to certain sections relating to the government’s responsibility of being a guarantor to the central warehousing corporation are proposed to be omitted.
The Act amends the Payment and Settlement Systems Act, 2007, extending its application to a designated trade repository, or issuer, in relation to payment systems. It introduces a new provision for settlement and netting in relation to central counter parties (who is a system provider who by way of novation interposes between system participants). It states that upon an order of declaration of insolvency, dissolution or winding up in relation to a central counter party, the payment obligations and settlement instructions between the central counter party and the system participants are to be determined by the central counter party in accordance with the gross or netting procedure or any other provision of this Act.
This must be approved by the RBI while issuing authorization and such determination would be final and irrevocable. This provision would override that of the Companies Act, 1956, Companies Act, 2013 and the Banking Regulation Act, 1949. (Section 23 (5) and (6))
It introduces another provision which empowers the RBI to direct system providers of a payment system to ensure protection of funds collected from customers. (Section 23A)
The Act amends Companies Act, 2013. It removes the requirement of a minimum paid up share capital amount for private and public companies. It introduces a provision stipulating punishment for contraventions for acceptance of deposits from the public. Such a contravention would now entail a minimum fine of Rs one crore and a maximum of Rs 10 crore, in addition to the deposit or interest that is due; and up to seven years imprisonment and fine between Rs 25 lakh to Rs two crore, or both, for every defaulting officer of the company. If proved that the defaulting officer of the company did so willfully, he will be liable for the offence of fraud, under this Act.
The Act limits the constitution of benches of Special Courts only for the trial of offences where punishment is imprisonment of two years or more. All other offences are to be tried by a metropolitan or first class judicial magistrate.
Further, doing away with the requirement of a special resolution with regard to related party transactions, the Act states that a resolution would not be necessary for transactions between a holding company and its wholly owned subsidiary whose accounts are consolidated with such holding company and have been placed before the shareholders for their approval.
The Act amends the Constitution of India to give effect to the acquiring of territories by India and transfer of certain territories to Bangladesh in pursuance of the agreement and its protocol entered into between the Governments of India and Bangladesh.
The Act amends the Delhi High Court Act, 1996. The Bill increases the pecuniary jurisdiction of the High Court of Delhi to INR 2 crore. Consequently, the Bill empowers the Chief Justice of the Delhi High Court to transfer any pending suit to a relevant subordinate court.