CONCILIATION UNDER INDIAN LAW

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What is Conciliation?

Conciliation is dispute resolution machinery in which a third neutral party facilitates settlement of dispute amicably. Conciliation in India is governed ad regulated by Arbitration and Conciliation Act, 1996.

Why to use conciliation over litigation?

It is cost and time effective to amicably settle disputes between the parties wherein, once the settlement agreement is signed by the parties as provided under section 73 (3) of Arbitration and Conciliation Act 1996, it acquires the character of an arbitral award as provided under section 74 of the Act. Thus it becomes final and binding.

What is difference between Conciliation and Arbitration?

  • Arbitration refers to a method of resolving commercial disputes, wherein the management and their respective positions approaches to the neutral third party, who takes a decision and imposes it.
  • Arbitration is an adjudicatory process which results in binding decision. For Arbitration there need to be prior written Agreement for Arbitration between the parties.
  • Conciliation is a method of resolving the dispute, wherein an independent person, who meet the parties jointly and severally and helps them to arrive at, negotiated settlement or resolve their differences.
  • It is cost and time effective to amicably settle disputes between the parties wherein, once the settlement agreement is signed by the parties as provided under section 73 (3) of Arbitration and Conciliation Act 1996 its acquire the character of an arbitral award as provided under section 74 of the Act. Conciliation proceeding can be started on the invitation in writing by a party to the other party and on the acceptance, in writing, by other party, the procedure may continue.  

How does a Conciliation proceeding commences?

Conciliation proceedings can be initiated only by a written invitation. The party sending the invitation shall identify the dispute or disputes in respect to which it is felt that the dispute could be resolved. The invitation shall also contain the necessary particulars, with proper jurisdiction of the same, so that the matter to be considered by the Conciliation is self- explanatory to other party. Either party can initiate conciliation proceedings. The Conciliation proceeding commence only when the other party accepts the invitation in writing. On the receipt of the invitation for Conciliation, the other party has two options:

  • Either to accept the invitation
  • Reject the invitation

Whether it is acceptance or rejection, the other party has to communicate the same in writing within 30 days, if no time period is specified in the invitation. If any other time limit is specified is specified in the invitation, then the acceptance or rejection should be sent within specified time.

Appointment and Number of Conciliators

Once it is agreed that the dispute will be settled through conciliation, the conciliators are appointed through mutual agreement between the parties in accordance with section 63 and 64.

Section 63 provides as under:-

  • There shall be one Conciliator unless the parties agree that there shall be two or three Conciliators.
  • Where there is more than one Conciliator, they ought, as a general rule, to act jointly.

Section 64 provides for appointment of Conciliators as under:

  • Subject to sub section (2),
    • In Conciliation proceedings with one Conciliator, the parties may agree on the name of a sole conciliator;
    • In Conciliation proceedings with two Conciliators, each party may appoint one Conciliator;
    • In Conciliation proceedings with three Conciliators, each party may appoint one Conciliator and the parties may agree on the name of the third conciliator who shall act as the presiding Conciliator.
  • The Parties may enlist the assistance of suitable intuition or person in connection with the appointment of Conciliators, and in particular:-
    • A party may request such an intuition or person to recommend the names of suitable individuals to act as a Conciliator; or
    • The parties may agree that the appointment of one or more conciliators be made directly by such an institution or person:

Provided that in recommending or appointing individuals to act as Conciliator, the institution or person shall have regard to such consideration as are likely to secure the appointment of an independent and impartial conciliator and, with respect to sole or third conciliator, shall take into account the advisability of appointing conciliators of a nationality other than the nationalities of the parties.

Can Court appoint Conciliators or not?

No, a Court can not appoint conciliators on its own. They are appointed with the consent of the parties.

What is Role of Conciliator?

Under section 67:

  1. The conciliator shall assist the parties in an independent and impartial manner in their attempt to reach an amicable settlement of their dispute.
  2. The conciliator shall be guided by principles of objectivity, fairness and justice, giving consideration to, among other things, the rights and obligations of the parties, the usages of the trade concerned and the circumstances surrounding the dispute, including any previous business practices between the parties.
  3. The conciliator may conduct the conciliation proceedings in such a manner as he considers appropriate, taking into account the circumstances of the case, the wishes the parties may express, including any request by a party that the conciliator hear oral statements, and the need for a speedy settlement of the dispute.
  4. The conciliator may, at any stage of the conciliation proceedings, make proposals for a settlement of the dispute. Such proposals need not be in writing and need not be accompanied by a statement of the masons therefor.

Can Conciliation proceedings be terminated or not?

Under Section 76, Conciliation proceedings can be terminated at any time by any party.

The Conciliation proceedings shall be terminated:-

  • By the signing of the settlement Agreement by the parties on the date of the agreement; or
  • By a written declaration of the Conciliator, after consultation with the parties, to the effect that further efforts at Conciliation are no longer justified, on the date of the declaration; or
  • By a written declaration of the parties addressed to the Conciliator to the effect that the Conciliation proceedings are terminated, on the date of the declaration; or
  •  By a written declaration of a party to the other party and the Conciliator, if appointed, to the effect that the Conciliation proceedings are terminated, on the date of the declaration.

Can an Arbitrator act as Conciliator or not?

Arbitrator can act as Conciliator only if agreed by the parties.

Evidence before Conciliators

Section 81 deals with admissibility of evidence in other proceedings and reads that:

The Parties shall not rely on or introduce as evidence in arbitral or judicial proceedings, whether or not such proceedings relate to the dispute that is the subject of the Conciliation proceedings:-

  • Views expressed or suggestions made by the other party in respect of a possible settlement of the dispute;
  • Admissions made by the other party in the course of the Conciliation proceedings;
  • Proposals made by the Conciliator;
  • The fact that, the other party had indicted his willingness to accept a proposal for settlement made by the Conciliator.

Conclusion

The conciliation as a means of alternate dispute resolution in the Act is definitely a positive step towards encouraging parties to opt for it. Taking into consideration the time, effort and money involved in pursuing cases before a court or an arbitrator in India, conciliation should act as the perfect means for resolving disputes, especially those of commercial nature. Hence, parties should prior to initiating arbitration or judicial proceedings, opt for conciliation as a means for resolving disputes. In case conciliation proceedings fail, only then should the disputants look at arbitration or litigation to resolve the dispute.

What is Private Trust?

A person may set up a private trust under a written instrument; that is, either through a will (testamentary trust) or through a written trust deed during the person’s lifetime. A trust having immovable property and created through a non-testamentary instrument has to be declared through a registered written instrument (section 5 of the Indian Trusts Act 1882). Generally, there is no statutory requirement to create trust by any instrument. Supreme Court in the case of Radha Swami Satsung v. CIT, (1992) 193 ITR 321 (SC) held that no formal document is required to create a trust but still it is desirable to create trust in writing in the case of will or where an immovable property is Rs 100 and more.

A Private trust is formed for various purposes and can prove to be an effective vehicle for succession and estate planning. Private trust will cease to exist when the purpose of formation of trust is fulfilled or the object of formation of trust becomes unlawful or the trust is revoked or when there is a destruction of trust’s property.

What is Trust property?

Trust property refers to assets that have been placed into a fiduciary relationship between a trustor and trustee for a designated beneficiary. Trust property may include any type of asset such as cash, securities, real estate, or life insurance policies. Trust property is also referred to as “trust assets” or “trust corpus”.

Q. 1 Can a property owned by family trust be attached?

Yes, the property owned by family trust can be attached.
Private Trusts can help insolvency protection but If the settlor is a beneficiary, the share of the trust’s assets belonging to the settlor or beneficiary can be attached in case of bankruptcy.

Q.2 What are rules governing property owned by a trust?

The Indian Trusts Act, 1882, governs the creation and operation of private trusts. The Trusts Act must be read in conjunction with applicable real estate, tax and securities law that prescribe the procedure for the valid creation of the trust and settlement of assets into the trust. Similarly, public trusts (charitable and religious) must adhere to the applicable rules prescribed by the state legislations pursuant to which they are set up in addition to the Charitable and Religious Trusts Act 1920, the Religious Endowments Act 1863 and the Charitable Endowments Act 1890.

Section 3 of Trust Act defines a “Trust” as an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner.

Thus, trust is a declaration which is made by the owner of the property that going forward, the same will be held by him or some other person (say a trustee), for the benefit of someone (ie beneficiary) and will be handed over to that person immediately or in due course.

Section 9 in The Indian Trusts Act, 1882

  1. Who may be beneficiary.—Every person capable of holding property may be a beneficiary. Disclaimer by beneficiary.—A proposed beneficiary may renounce his interest under the trust by disclaimer addressed to the trustee, or by the setting up, with notice of the trust, a claim inconsistent therewith.

Although not rules per se, some considerations to be mindful of while setting up trusts are outlined below:
Parties to a trust: Ideally, all three parties should not be the same person. Necessary perspectives should be harmoniously balanced while identifying the parties (settlor/contributor, trustee or beneficiary). For instance, from a securities perspective, it is advisable that the trustee and beneficiary in some cases be individuals who belong to the promoter group. From a tax perspective, in an irrevocable trust there should be no overlap between settlor and beneficiary.

Regulator consent: At times, prior consent of the regulator may apply if there are sectoral regulations on whether a trust may own property and, if it may, the quantum of such assets as well as the eligibility criteria of the trustee (legal owner of the trust property) and consequent reporting – for instance, transfer of non-banking financial companies holding more than 50% of passive assets and earning more than 50% of passive income or shares of a private sector banking company above prescribed limits.

Tax and corporate compliances: From a tax perspective, the trust must obtain a tax identification number and file annual tax returns. Further, the trustee must also undertake necessary steps to comply with the US Foreign Account Tax Compliance Act, the Common Reporting Standard and corporate law based on assets owned by the trust.

Land regulations: If the trust owns agricultural or plantation land, the land laws that set out the eligibility for holding such land, as well as applicable exchange controls, must be complied with if NRIs are parties to the trust.

Q.3 How can a property owned by a trust attached?
If the trust is created solely for the purpose of defeating the claim of the creditor or for any unlawful purpose, then the property owned by a trust can be attached.

Sec. 4 of Indian Trust Act: Lawful purpose.—A trust may be created for any lawful purpose. The purpose of a trust is lawful unless it is
(a) forbidden by law, or (b) is of such a nature that, if permitted, it would defeat the provisions of any law, or (c) is fraudulent, or (d) involves or implies injury to the person or property of another, or (e) the Court regards it as immoral or opposed to public policy. Every trust of which the purpose is unlawful is void. And where a trust is created for two purposes, of which one is lawful and the other unlawful, and the two purposes cannot be separated, the whole trust is .
Explanation.—In this section, the expression “law” includes, where the trust property is immovable and situate in a foreign country, the law of such country.
Illustrations
(a) A conveys property to B in trust to apply the profits to the nurture of female founding’s to be trained up as prostitutes. The trust is void.
(b) A bequeaths property to B in trust to employ it in carrying on a smuggling business and out of the profits thereof to support A’s children. The trust is void.
(c) A, while in insolvent circumstances, transfers property to B in trust for A during his life, and after his death for B. A is declared an insolvent. The trust for A is invalid against his creditors.

Section 155 of IBC : Estate of bankrupt:
(1) The estate of the bankrupt shall include,—
(a) all property belonging to or vested in the bankrupt at the bankruptcy commencement date;
(b) the capacity to exercise and to initiate proceedings for exercising all such powers in or over or in respect of property as might have been exercised by the bankrupt for his own benefit at the bankruptcy commencement date or before the date of the discharge order passed under section 138; and
(c) all property which by virtue of any of the provisions of this Chapter is comprised in the estate.
(2) The estate of the bankrupt shall not include—
(a) excluded assets;
(b) property held by the bankrupt on trust for any other person;
(c) all sums due to any workman or employee from the provident fund, the pension fund and the gratuity fund; and
(d) such assets as may be notified by the Central Government in consultation with any financial sector regulator.

Section 158 of IBC: 1) Any disposition of property made by the debtor, during the period between the date of filing of the application for bankruptcy and the bankruptcy commencement date shall be void.
(2) Any disposition of property made under sub-section (1) shall not give rise to any right against any person, in respect of such property, even if he has received such property before the bankruptcy commencement date in—
(a) good faith;
(b) for value; and
(c) without notice of the filing of the application for bankruptcy.
(3) For the purposes of this section, the term “property” means all the property of the debtor, whether or not it is comprised in the estate of the bankrupt, but shall not include property held by the debtor in trust for any other person.

Q.4 What is the repercussion if there is element of fraud I am transfer of property to a trust?

A trust can be created only for a lawful purpose. If the purpose of trust is such that if permitted it would defeat the provisions of any law then the purpose cannot be regarded as a lawful purpose.
Every transfer of immovable property made with intent to defeat or delay creditors of the
transferor is voidable at the option of the creditors. A period of two years for claims has
been laid down in the Indian Insolvency Act.

Criminal concealment from police, customs, courts, etc?
Where the property, in respect of which the trust has been set up, has been acquired by fraud, such a trust is held to be unlawful and can be set aside. In such cases, applicable provisions of the criminal and customs legislations may be invoked in order to seize the trust property.

Section 65 of Indian Trust Act, 1882: Acquisition by trustee of trust-property wrongfully converted.- Where a trustee wrongfully sells or otherwise transfers trust-property and afterwards himself becomes the owner of the property, the property again becomes subject to the trust, notwithstanding any want of notice on the part of intervening transferees in good faith for consideration.

INTRODUCTION:

Justice Arun Mishra while pronouncing the landmark judgment said, “once a daughter always a daughter and a son is a son till he is married. The daughter shall remain coparcener throughout life irrespective of the fact whether the father is alive or not.”  The judgement today has eradicated the famous patriarchal society sayings “Betiya parayi hoti hain” Now this judgment by the apex court of our country has recognized the status of Hindu daughter’s as equal as to the son.

WHAT IS JUDGMENT ABOUT

          Supreme Court on 11th August, 2020 in a landmark judgement held that daughters will have equal coparcenary rights in Hindu Undivided Family properties, irrespective of whether the father was alive or not on 9 September 2005, when an amendment came into force.

Coparcener is a term used for a person who assumes a legal right in parental property by birth only. Asserting that this right under Section 6 of the Hindu Succession Act, 1956, is acquired by birth, the bench, comprising Justices Arun Mishra, S. Abdul Nazeer and M.R. Shah, observed, “The provisions contained in substituted section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on September 9, 2005 (the date when the law came into force),”

The bench said whether the father was alive or not, daughters born before September 9, 2005, too could claim equal right in inheritance.

The verdict makes it clear the amendment to the Hindu Succession Act, 1956 granting equal rights to daughters to inherit ancestral property would have retrospective effect. The verdict has settled all the ambiguities related to the 2005 amendment.

HOW THAT JUDGMENT IS PATH BREAKING?

The Hindu Succession Act, 1956 was amended in 2005. Before 2005 amendment, according to Sec. 6 of the Hindu Succession Act, 1956 only son had an independent birth right in joint family property as a coparcener, daughter can not be coparcener but after the 2005 amendment has included both son and daughter have right and liability from the date of birth as a coparcener in joint family property. Section 6 of the 2005 Act removed the discrimination between married and unmarried daughters. It took away the notion that after marriage the daughter belongs only to her husband’s family.

In similar way, before 2005 amendment, according to Sec 23 a dwelling house where member are residing, no female heir can claim partition and daughter have right of residence only when she is unmarried, deserted, or widowed. But 2005 amendment, included married daughters also in Sec 23 and said that both daughters (married or unmarried) have the same right to reside in and claim partition of the parental dwelling house same as son.

However, post this, different courts interpreted section 6 of the Hindu Succession Act, 1956 as amended by the Hindu Succession (Amendment) Act of 2005.

Conflicting judgments earlier

The need for a three-judge bench to hear this matter arose because of conflicting judgments passed by two-judge benches of the Supreme Court earlier. In a 2015 judgment in the Prakash v. Phulavati case, a two-judge bench had held that if the coparcener (father) had passed away prior to 9 September 2005 (date on which the amendment came into effect), his daughter would have no right to the coparcenary property. However, in the Danamma v. Amar case in 2018, another two-judge bench had held that the two daughters in this matter would get a share in the property, even if their father had passed away in 2001. A three-judge bench headed by Justice A.K. Sikri had taken note of these conflicting judgments in November 2018 and decided that a three-judge bench should settle the law.

Hence this landmark judgment by the Apex court has cleared all the ambiguities of the 2005 Amendment of Hindu Succession Act (2005 Amendment Act) and said daughters have equal rights in her father’s property irrespective of whether the father has passed away before the amendment of 2005 Act or after that,  whether the daughter is married or unmarried, daughter has got inherent rights by birth to the coparcenary property.

This Judgment is pathbreaking as Supreme Court judgment will rectify a discriminatory social practice. Gender equality is a fundamental principle of any modern, progressive society and state. When daughters get her rights equally at home then definitely she will be treated equally in the society too. This will be a step to abolish various cruelty done upon the women in her parents home as well as in her matrimonial home.

WHAT IS THE FUTURE LEGALLY AND SOCIALLY AFTER THIS JUDGEMENT?

The Hindu Succession (Amendment) Act that was passed in September 2005, which had tried to remove the disparities by paving the way for daughters also inheriting the property of intestate in case of a Hindu joint family. Despite the amended law coming into place, it is not unusual for wedded women to surrender their shares in the joint family or ancestral property (of their birth) in favour of the male members, in order to sustain affable familial bonds. Daughters may then challenge such settlement or sacrifice in Indian courts in the future. In our Country, mostly women are deprived of their rights which include property rights also.

Supreme Court’s judgement has taken one step ahead to promote gender equality. Both daughters and son will have equal rights from the day they are born. This judgment will have wider affects on the society and legal status of the women in our country. Supreme Judgement has made very clear by this judgment that unlike son, daughters also have equal rights on their parents property  and the right will remain same even after their marriage. Marital status will not effect the rights of women in the property of the parents/ancestral. Unmarried or married, daughters will be always daughters.  Chances are there, various atrocities against women will reduce due to equal rights of daughters in father’s property.  Domestic violence against the women in the matrimonial home if the women are no longer dependent on anyone. Daughters having equal rights in the father’ s property will definitely abolish dowry system in our country. Inspite of having various laws against the dowry, still dowry system is followed in our country and women are being continuously getting victimised for dowry harassment. The 2005 amendment of Hindu Succession Act and this judgment will help to stop dowry system.

WHAT IS THE STATUS OF DAUGHTERS IN PROPERTY (IF THEY ARE MUSLIMS OR CHRISTIANS)

Christian and Muslim women are still being governed by their Canon and Islamic Laws, the progress of Hindu women after independence was so rapid that they achieved complete gender equality in the matter of property rights. The property rights of women belonging to other religions are unequal and unfair. Hindus, Sikhs, Buddhists and Jain are governed by one code; Christians are governed by another code enacted by the British for the British Christians in India. Muslims do not have a code regulating property rights and they are governed by their personal law.

In Islamic law, the prophet totally reformed the customary law of inheritance and made husband or wife an heir. Females and cognates were made eligible to inherit. Thus, Islam gave women a share which was denied to her in pre Islamic Arabia. Even though she is given a share, she is treated unequally by giving her half the share of her brother. Quran assures her a share although not equal to that of her brother. Quran compensates it by giving her right to Mehr which she can keep with her and claim maintenance from the husband even if she is rich.

Property rights of Christians in India is governed by the Indian Succession Act, 1925. About 28 million people in India follow this faith, which is 2.3 per cent of the country’s population. Earlier, Christians in Kerala Travancore followed a set of their own rules while Cochin Christians had their own rules. The Christians in Pondicherry took to the French rules while those in parts of Goa, Daman and Diu followed the rules set by the Portuguese. These were later repealed and the Indian Succession Act, 1925 is binding on all. Christian women can claim a share of the father’s property under section 37 of the Indian Succession Act 1925 even though they had been given stridhanam.

CONCLUSION:

Despite strong Constitutional guarantees and courts taking an expansive definition of the fundamental right to life under Article 21 of the Constitution, property rights of Indian women are far from gender-just even today. Even if we have gender-just inheritance laws, their effective and timely implementation may be difficult, given the society we live in. There is need to social awareness and to educate people to change their attitude towards the concept of gender equality. The need of the hour is also to focus attention on changing the social attitudes in favour of equality for all by enacting a uniform law. Campaigns for legal literacy; efforts to enhance social awareness of the advantages to the whole family if women own property; and legal and social aid for women seeking to assert their rights, are only a few of the many steps needed to fulfil the change incorporated in this judgment and  in the 2005 Amendment Act.

INTRODUCTION

In India, before the formation of Central Registry of Securitisation Asset Reconstruction and Security Interest of India (CERSAI), information on the encumbrance on a property was known only to the borrower and the lender due to fragmented registration system. As a result, people could obtain multiple loans on the same property. Some people used to take one loan from one bank, which would hold the deed papers. Then they used to take several more loans from other banks using attested copies of the deed, by claiming that they had lost the originals. Some people also used to obtain loans using entirely fake title deeds or by using colour photocopies of the original title deed. Properties with unpaid loans were also being sold without informing the buyers of the existing liability on the property.

The decision to form central registry of equitable mortgages was revealed in the 2011 budget speech by then Finance Minister Pranab Mukherjee. It was formed under the Chapter IV Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act).

WHAT IS CERSAI

Central Registry of Securitisation Asset Reconstruction and Security Interest of India also known as CERSAI is a central online security interest registry of India. It was primarily created to check frauds in lending against equitable mortgages, in which people would take multiple loans on the same asset from different banks.

CERSAI has been established as a company under section 8 of the Companies Act, 2013 by the Government of India.

CERSAI was formed to identify and check fraudulent activity in lending transactions against equitable mortgages. In other words, the CRESAI was established to discourage and prevent the practice of taking out various loans from several banks using the same asset or property.

Major shareholders of the CERSAI are the Central Government of India, National Housing Bank and public sector banks, out of which the central government incidentally holds a 51% share in the company.

REGISTRATION

  • The Registration with CERSAI can be initiated on the official website of CERSAI.
  • The person seeking for registration will be required to fill out the registration form electronically available under the ‘Entity Registration’ option on the CERSAI website.
  • The user must possess a Digital Signature Certificate (DSC) to gain access to the CERSAI portal and to fill out the relevant details.
  • Once all the information required for the registration has been filled in, the same is required to be printed and signed by the authorised signatory.
  • These printed forms, along with the all relevant documents as mentioned in the forms are to be sent to the official address of CERSAI.

ACCESSIBILITY

  • Any bank, financial institution or an individual can access the registration platform of CERSAI for a certain fee. By registering themselves with CERSAI, the lenders can pull up the information on an asset or property to validate that whether any previous security interest has been created by a different lender ((banks, financial institutions etc.) in the past. Usually, this is done before the sanction of a loan to a borrower
  • This is exceptionally beneficial for the genuine buyers of the property, as CERSAI permits them to pull up all the relevant information from the registry to check whether the property in which they are interested in free of any liability that may have been created by another lender.

MAIN OBJECTIVES OF CERSAI

  • To crack down on such fraudulent and dubious activities, Central Registry of Securitisation Asset Reconstruction and Security Interest of India (CERSAI) was established with the prime objective of maintaining a centralised registry of equitable mortgages.
  • It allows financial institutions and banks to register any transactions in respect of asset securitisation as well as reconstruction.
  • The scope of CERSAI was further extended in the year 2012; it was extended to include the registration of any security interests that were created via the assignment of factoring or accounts receivables.
  • In recent times, the scope of CERSAI was further enlarged to include registration of any security interests that are created on assets not considered to be a tangible asset and to all types of mortgages prevalent in India.

RIGHT TO ENFORCEMENT OF SECURITIES AND PRIORITY TO SECURED CREDITORS

  • No secured creditors shall be entitled to exercise the rights of enforcement of securities unless the security interest created in its favour by the borrower has been registered with Central Registry.
  • Notwithstanding anything contained in any other law for the time being in force, No secured creditor shall be entitled to exercise the rights of enforcement of securities unless the security interest created in its favour by the borrower has been registered with the Central Registry.

PENALTIES

  • Notwithstanding anything contained in any other law for the time being in force, No secured creditor shall be entitled to exercise the rights of enforcement of securities unless the security interest created in its favour by the borrower has been registered with the Central Registry. Every secured creditors and asset reconstruction companies are required to fill the particulars of every transaction of securitisation or asset reconstruction or security interest created, failing which are liable for the penalties.
  • Every secured creditors and asset reconstruction companies are required to send the details of any modification of security interest already registered to the Central Registrar, failing which are liable for the penalties.

SALIENT FEATURES OF AMENDMENT IN THE SARFAESI ACT, 2002 WHICH IS IN FORCE W.E.F. 24TH OF JANUARY, 2020 ARE AS FOLLOWS:

  • Creditors other than Secured Creditors (as defined under section 2(1)zd of SARFAESI Act), in whose favour security interest is created have to file the same with CERSAI.
  • Filing of security interest with CERSAI shall be deemed to constitute a Public notice from the date & time of filing with CERSAI.
  • Attachment orders issued by Revenue Authorities for recovery of Govt. dues are required to be filed with CERSAI.
  • Attachment orders issued in favour of any person, by Courts/Tribunals are required to be filed with CERSAI.
  • Secured Creditors [as defined under section 2(1)(zd)] shall be entitled to enforce securities under SARFAESI Act only if the security interest is filed with CERSAI.
  • Filing of Security interest or attachment orders with CERSAI shall have priority over any subsequent security interest created upon such property.
  • After registration of security interest with CERSAI by secured creditors, their dues will be paid in priority over Govt. dues.
  • Penalty provisions for default in filing, modifying and satisfaction of security interest (section 27) is no longer applicable.
  • 30-day time period for filing the transactions of creation/ modification of security interest with CERSAI (section 23) is no longer applicable.

INTRODUCTION:

Elections in a democratic country allow the people to assert their desire; political defections occurring between elections undermine that assertive act and thus the expressed will of the people. Defections were common in India even prior to the country’s independence, when there was limited representation. Beginning around 1960, the rise of coalition politics increased the incidence of defections as elected representatives sought to occupy a berth in the council of ministers.

Rajiv Gandhi’s first action as Prime Minister was passing the Anti-defection law in January 1985. According to this law, an elected Member of Parliament or legislative assembly could not join an opposition party until the next election.

WHAT DO YOU MEAN BY ANTI DEFECTION?

Defection can be defined as a situation in which party leader abandons his loyalty toward his own party and provides support to other parties.

When an elected representative joins another party without resigning his present party, it is called defection. Thus a defector is one who is elected from one Political party and joins (Practically for being in power) another Political party.

The anti-defection law sought to prevent such political defections which may be due to reward of office or other similar considerations.

WHY ANTI DEFECTION LAW IN INDIA?

  • For a long time, the Indian political scene was besmirched by political defections by members of the legislature. This situation brought about greater instability in the political system.
  • The infamous “Aaya Ram, Gaya Ram” slogan was coined against the background of continuous defections by the legislators. Legislators used to change parties frequently, bringing about chaos in the legislatures as governments fell. In sum, they often brought about political instability.
  • This caused serious concerns to the right-thinking political leaders and Intellectuals of the country.
  • Several efforts were made to make some law to curb defections. Starting from private members’ efforts, Bills were brought in by the government at different times.
  • No Bill could be passed because of one reason or the other. However, the most important reason was that there was no consensus on the basic provisions of an anti-defection law.
  • Members of Parliament were concerned about the freedom of speech in Parliament and other legislatures as they had a fear that too stringent a law on defection would likely curb the freedom of speech (which is a Fundamental right) of the legislators. A lot of time was taken before a consensus could be reached on this issue.
  • Finally, in 1985, the Rajiv Gandhi government brought a Bill to amend the Constitution and curb defection. The main objective for which The Anti-Defection Laws was introduced in the Constitution was to combat “the evil of political defections”.
  • The 10th Schedule of the Constitution, which contains the anti-defection law, was added to the Constitution through this amendment.

LAW DEALING WITH ANTI DEFECTION IN INDIA?

The tenth schedule of the Indian Constitution, which is also called the Anti-Defection Act, was amended in 1985 to prevent political defections and stop politicians from changing parties for the lure of office.

Under Anti-Defection Act, the Rule 2– tenth schedule lays the grounds for disqualification of the member’s i.e.:

  1. If a member of a house belonging to a political party:
  2. Has voluntarily given up his membership of such political party, or
  3. Votes, or abstain from voting in such House, contrary to the direction of his political party.

However, if the member has taken prior permission, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified.

  1. If an independent candidate joins a political party after the election.
  2. If a nominated member of a house joins any political party after the expiry of six months from the date when he becomes a member of the legislature.

Rule 4 and 5- states the exemption from disqualifications i.e.:-

A member of the house shall not be disqualified where his original political party merges with another political party, and he and any other member of his political party:-

  1. Have become members of the other political party, or of a new political party formed by such merge
  2. Have not accepted the merger and opted to function as a separate group.

Rule 3– state that there will be no disqualification of members if they represent a faction of the original political party, which has arisen as a result of a split in the party. A defection by at least one-third members of such a political part was considered as a spilt which was not actionable.

Speaker or the chairman of the house is the authority to decide on defection cases. The Anti Defection Law applies to both Parliament and state assemblies.

SUCCESSF/FAILURE OF ANTI DEFECTION LAW IN INDIA?

The law allows defections, if it involved one-third members, i.e. it had provisions regarding exemption from disqualification in case of a ‘split’ in a political party. But undesirably it resulted in mass defections instead of individual defections.

How far has the law succeeded in achieving its goal?

The law certainly has been able to curb the evil of individual defection to a great extent. But, of late, a very alarming trend of legislators defecting in groups to another party in search of greener pastures is visible.

The recent examples of defection in state Assemblies and even in Rajya Sabha bear this out. This only shows that the law needs a relook in order to plug the loopholes if any. But it must be said that this law has served the interest of the Polity to an extent.

Political instability caused by frequent and unholy change of allegiance on the part of the legislators of our country has been contained to a very great extent. That is a story of success of one of the most important legislation that the Indian Parliament has enacted

The Logic of those opposing Anti Defection Law:

  1. It affects the independence of MPs/ MLAs.
  2. Constitution drafters didn’t intend to give the control of members to political parties. Interestingly, it’s only in the 10th schedule, which was included in 1985 that political parties are mentioned in constitution.
  3. Many members speak up their mind and conviction more discussion and thus better debates and solutions in parliament. Anti-defection law is against this.
  4. In a diverse country like India, members also represent their constituencies. Hence, every member needs to be given voice to give voice to all regions and sections of the population.
  5. No incentive for MPs/MLAs to research and understand on policies
  6. Individual defection has given way to group defection

SOME IMPORTANT JUDGMENTS DEALINGS WITH ANTI DEFECTION LAW

  1. In Kihoto Hollohon v. Zachilhu and Others, held that the law is valid in all respects except on the matter pertaining to judicial review, which was held to be unconstitutional
    The main issue in this case was whether the tenth schedule curtails the freedom of speech and expression and subvert the democratic rights of the elected members in parliament and state legislature?  And also that whether granting finality to the decision of the Speaker/Chairman is valid? So it was finally held in this case that the tenth schedule neither impugns upon the freedom of speech and expression nor subverts the democratic right of elected members. The tenth Schedule is constitutionally valid and this provision is valid, However the High Courts and the Supreme Courts can exercise Judicial Review under the constitution. But the Judicial Review should not cover any stage prior to the making of a decision by the speakers/Chairmen.
  2. The Supreme Court, in the Ravi Naik vs. Union of India case, has interpreted the phrase ‘voluntarily gives up his membership.’ It says: “The words ‘voluntarily gives up his membership’ are not synonymous with ‘resignation’ and have a wider connotation. A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party.
    “Even in the absence of a formal resignation from membership, an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs.”
  3. In another judgment in the case of Rajendra Singh Rana vs. Swami Prasad Maurya and Others, the Supreme Court held that the act of giving a letter requesting the Governor to call upon the leader of the other side to form a Government itself would amount to an act of voluntarily giving up membership of the party on whose ticket the said members had got elected.

WHAT ARE THE CHANGES REQUIRED IN ANTI DEFECTION LAW ?

  1. To prevent Members from mass resigning in order to switch parties under a quid-pro-quo deal, the amended Anti-Defection Law should forbid a resigning Member from being re-elected during the by-election that follows immediately after their resignation. But then this may lead to dictatorship of political party.
  2. If a Member resigns, they should only become eligible to contest again after the term of the Assembly ends (that is, during the following general election or state election; not the by-election that results from their resignation).
  3. Nowadays, no real democratic discussions happen inside political parties about major issues affecting the country. Individual MPs and MLAs need to be empowered to think independently.
  4. Anti-defection law should be applied only to confidence and no-confidence motions (Dinesh Goswami Committee on electoral reforms, 1990) or only when the government is in danger (Law Commission (170th report, 1999).
  5. The rationale that a representative is elected on the basis of the party’s programme can be extended to pre-poll alliances.
  6. Instead of making Speaker the authority for disqualification, the decision should be made by the president or the governor on the advice of the Election Commission.  This would make the process similar to the disqualification procedure as given in Representation of Peoples Act (RPA).
  7. There can be additional penalties for defectors as well.

Conclusion:-

Impartiality, fairness and autonomy in decision-making are the hallmarks of a robust institution. It is the freedom from interference and pressures which provide the necessary atmosphere where one can work with an absolute commitment to the cause of neutrality (as a Constitutional value).

At a time when India’s rank has fallen in the latest Democracy Index (2019), it is expected from Parliament to take steps to revamp and strengthen the institution of the Speaker. The introduction of the Tenth Schedule in the Indian Constitution was aimed at curbing political defections. Though the law has succeeded in a reasonable way but due to some of its loopholes, it has not been able to achieve the best it can. Corrupt politicians have, through their dishonesty, been able to find the defects in the law to suit their needs in the best possible way. The changes required in the law as mentioned above might help it to develop to the best possible extent.

(Registration of ARC and cancellation of certificate of registration under SARFAESI Act, 2002)

An Asset Reconstruction Company is a specialized financial institution that buys the Non Performing Assets (NPAs) or bad assets from banks and financial institutions so that the letter can clean up their balance sheets. In short, ARCs are in the business of buying bad loans from banks. ARCs clean up the balance sheets of banks when the banks sells the bad loans / NPSA to the ARCs. This helps banks to concentrate in normal banking activities. Bank rather than going after the defaulters by wasting their time and effort, can sell the bad assets to the ARCs at a mutually agreed value.

THE SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST (SARFAESI) ACT, 2002 PROVIDES THE LEGAL BASIS FOR THE SETTING UP ARCS IN INDIA.

SECTION 2 (1) OF THE ACT EXPLAINS THE MEANING:

“Asset Securitization”
means acquisition of financial assets by any asset reconstruction company form any originator, whether by raising of funds by such asset reconstruction company from qualified buyers by issue of security receipts representing undivided interest in such financial assets or otherwise.

“Asset reconstruction”
means acquisition by any asset reconstruction company of any right or interest of any bank or financial institution in any financial assistance for the purpose of realisation of such financial assistance.

“Asset reconstruction company”
means a company registered with Reserve Bank under section 3 for the purposes of carrying on the business of asset reconstruction or securitisation, or both.

Asset Reconstruction Company is a company registered under section 3 of SARFAESI ACT, 2002. It is regulated by Reserve Bank of India as a Non Banking Financial Company (u/s 45I (f) (iii) of RBI Act, 1934). They operate their functions according to the guidelines issued by the RBI. RBI has exempted ARCs from the compliances under section 45-IA, 45-IB and 45-IC of the Reserve Bank Act, 1934

REGISTRATION OF ASSET RECONSTRUCTION
COMPANIES:

Section 3 of SARFAESI Act, 2002 states that

(1) No Asset Reconstruction Company shall commence or carry on the business of securitisation or asset reconstruction without-
(a) Obtaining a certificate of registration granted under this section.
(b) Having net owned fund of not less than two crore rupees or such other higher amount as the Reserve Bank, may, by notification, specify:
Provided that the Reserve Bank may, by notification, specify different amounts of owned fund for different class or classes of asset reconstruction companies.

(2) Every Asset reconstruction company shall make an application for registration to the Reserve in such form and manner as it may specify.

(3) The Reserve Bank may, after being satisfied that the conditions specified in sub-section (6) are fulfilled, grant a certificate of registration to the Asset reconstruction company to commence or carry on business of securitisation or asset reconstruction, subject to such conditions, which it may consider, fit to impose.

(4) The Reserve Bank may reject the application made under sub-section (2) if it is satisfied that the conditions specified in sub-section (6) are not fulfilled:
Provided that before rejecting the application, the applicant shall be a reasonable opportunity of being heard.

(5) Every Asset reconstruction company shall obtain prior approval of the Reserve Bank for any substantial change in its management or change of location of its registered office or change in its name.

(6) The Reserve Bank may, for the purpose of considering the application for registration of a Asset reconstruction company must require to be satisfied by an inspection of records or books of such Asset reconstruction company , or otherwise, that the following conditions are fulfilled, namely:-
(a) That the Asset reconstruction company has not incurred losses in any of the three preceding financial years;
(b) That such Asset reconstruction company has made adequate arrangements for realisation of the financial assets acquired for the purpose of securitisation or asset reconstruction and shall be able to pay periodical returns and redeem on respective due dates on the investments made in the company by the qualified buyers or other persons;
(c) That the directors of Asset reconstruction company have adequate professional experience in matters related to finance, securitisation and reconstruction;
(d) That any of its directors has not been convicted of any offence involving moral turpitude;
(d) That a sponsor of an asset reconstruction company is a fit and proper person in accordance with the criteria as may be specified in the guidelines issued by the Reserve Bank for such persons;
(e) That the Asset reconstruction company has complied with or is in a position to comply with prudential norms specified by the Reserve Bank;
(f) That Asset reconstruction company has complied with one or more conditions specified in the guidelines issued by the Reserve Bank for the said purpose.

SECTION 4: CANCELLATION OF CERTIFICATE OF REGISTRATION:

(1) The Reserve Bank may cancel a certificate of registration granted to a asset reconstruction company, if such company-
(a) Ceases to carry on the business of securitisation or asset reconstruction; or
(b) Ceases to receive or hold any investment from a qualified buyer; or
(c) Has failed to comply with any conditions subject to which the certificate of registration has been granted to it; or
(d) At any time fails to fulfil any of the conditions referred to in Section 3 (6);
(e) Fails to –
Comply with any direction issued by the Reserve Bank under the provisions of this Act; or
Maintain accounts in accordance with the requirements of any law or any direction or order issued by the Reserve bank under the provisions of this Act; or
Submit or offer for inspection its books of account or other relevant documents when so demanded by the Reserve Bank; or
Obtain prior approval of the Reserve Bank required under subsection (5) of section 3:

Provided that before cancelling a certificate of registration on the ground that the asset reconstruction company has failed to comply with the provisions or has failed to fulfil any of the conditions referred by the Reserve Bank, unless it is of the opinion that the delay in cancelling the certificate of registration granted u/s 3(4) shall be prejudicial to the public interest or the interests of the investors or the asset reconstruction company, shall give an opportunity to such company on such terms as the Reserve Bank may specify for taking necessary steps to comply with such provisions or fulfilment of such conditions.

(2) An asset reconstruction company aggrieved by the order of cancellation of certificate of registration may prefer an appeal, within a period of thirty (30) days form the date on which such order of cancellation is communicated to it, to the Central Government. Provided that before rejecting an appeal such company shall be given a reasonable opportunity of being heard.

(3) An asset reconstruction company which is holding investments of qualified buyers and whose application for grant of certificate of registration has been rejected or certificate of registration has been cancelled shall, notwithstanding such rejection or cancellation, be deemed to be a asset reconstruction company until it repays the entire investments held by it together with interest, if any within such period as the Reserve Bank may direct.

Benefits of presence of registered Asset reconstruction Companies in the market:

Since the existence of ARCs the banking institutes have seen positive functioning abilities as there has been an entity to share the burden of Non-Performing Assets. They have brought some positive changes in the financial institutes. The ARCs have fastened corporate reconstruction by taking overt the NPAs from the market. The rapid process of acquisition and liquidation of NPA reduces the loss of valuable assets and time of banking institutes.

Introduction:

An F.I.R i.e. First Information Report is registered with the concerned police station under section 154 of Cr.P.C.

In case, the police officer of a police station refuses and/or fails to register an F.I.R, then the aggrieved person can approach the concerned Superintendent of Police or DYSP (Deputy Superintendent of police) under section 154 (3) of Cr.P.C

Inspite of having jurisdiction and the fact of an offence being cognizable in nature, if the concerned police station or the Superintendent of Police refuses to register an F.I.R than in that circumstances, the aggrieved person can approach JMFC (Judicial Magistrate of First Class) /Magistrate concerned U/s. 156 (3) of Cr.P.C

Section 156 of Cr.P.C – Police Officer’s power to investigate cognizable case –

  1. Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
  2. No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
  3. Any Magistrate empowered under section 190 may order such an investigation as above- mentioned.

Thus, Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.

The power in the Magistrate to order further investigation under Section 156(3) is an independent power, and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence the Magistrate can order re-opening of the investigation even after the police submits the final report, as held by Patna High Court in State of Bihar vs. A.C. Saldanna. MANU/SC/0253/1979

The Hon’ble Apex Court in CBI and another V/s. Rajesh Gandhi and another, 1997; Cr.L.J 63 (vide para 8) that, “no one can insist that an offence be investigated by a particular agency”. This was agreed in Sakiri Vasu V/s. State of U.P and Others,2007 (10) SC 585.

In Sakiri Vasu vs State Of U.P. and Others, it was further held that, “if a person has a grievance that the police station is not registering his FIR under Section 154 Cr.P.C., then he can approach the Superintendent of Police under Section 154(3) Cr.P.C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156 (3) Cr.P.C. before the learned Magistrate concerned. If such an application under Section 156 (3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.

Relevant Case Laws:-

  1. Smt. Masuman W/o Sri Faiz Mohd V/s. State of Uttar Pradesh – (Allahabad High Court)2007 ILR 1 All 324
  2. Pawan Sharma And Anr V/s. Smt. Kamalabai And Anr – (Madhya Pradesh High Court) 2007 CriLJ 3539
  3. Harshadbhai C. Patel V/s. Indravadan P. Shah And Anr – (Gujrat High Court) (1986) 1 GLR 643
  4. Annie Jyothis V/s. State of Kerala – (Kerala High Court)2008(3)KLT211
  5. Mr. Jitendra Chandrakant Mehta V/s. Shamrock Impex Pvt Ltd – (Bombay High Court) 2006 CriLJ 3131, 2006 (4) MhLj 355

Section 156(3) of Cr.P.C says that, “Any Magistrate empowered under section 190 may order such an investigation as above mentioned;”

The Government of India notified the Jammu and Kashmir Grant of Domicile Certificate (Procedure) Rules, 2020, on May 18 this year and allowed different categories of non-locals, including non-local government employees, to register for domicile certificates. The Jammu and Kashmir administration on 27th June, 2020 started the process of distributing domicile certificates among people belonging to different sections, who had been living in the Union Territory (UT) for the last seven decades but were deprived of their legitimate citizenship rights.

In law, domicile is the status or attribution of being a lawful permanent resident in a particular jurisdiction.

CRITERIA TO GET DOMICILE OF JAMMU AND KASHMIR:

“Section 3A of J&K Reorganization (Adaptation of State Laws) Order, 2020 under J&K Civil Services (Decentralization and Recruitment) Act state that:-

  1.  Any person who fulfils the following conditions shall be deemed to be a domicile of the Union territory of Jammu and Kashmir for the purposes of appointment to any post carrying a pay scale of not more than Level-4 (25500) under the Union territory of Jammu and Kashmir or under a local or other authority (other than cantonment board) within the Union territory of Jammu and Kashmir:-
    • who has resided for a period of fifteen years in the Union territory of Jammu and Kashmir or has studied for a period of seven years and appeared in Class 10th /12th examination in an educational institution located in the Union territory of Jammu and Kashmir; or
    • who is registered as a migrant by the Relief and Rehabilitation Commissioner (Migrants) in the Union territory of Jammu and Kashmir.
  2. Notwithstanding anything contained in sub-section (1), following, following
    persons shall be deemed to be domicile under sub-section (1) :-
    • children of those Central Government Officials , All India Services Officers, Officials of Public Sector Undertaking and Autonomous body of Central Government, Public Sector Banks, Officials of Statutory bodies, Officials of Central Universities and recognised Research institutes of Central Government who have served in Jammu and Kashmir for a total period of ten years; or
    • children of parents who fulfil any of the conditions in subsection (1); or
    • children of such residents of Union territory of Jammu and Kashmir as reside outside Union territory of Jammu and Kashmir in connection with their employment or business or other professional or vocational reasons but their parents fulfil any of the conditions provided in sub-section (1)”.

Explanation:

Under the newly inserted Section 3A of J&K Civil Services (Decentralization and Recruitment) Act which is regarding domicile for purposes of appointment to any service in UT of J&K. A person will have to fulfil the following conditions to be deemed to be a domicile of the UT of J&K:

  1. A person who has resided in J&K for 15 years or has studied for seven years and appeared in Class 10 or Class 12 exams in an educational institution located in J&K will be deemed to have  ‘domicile’.
  2. Children of central government officials, All India Services officers, officials of public sector undertakings and autonomous bodies of the central government, public sector banks, officials of statutory bodies, officials of central universities and recognised research institutes of the centre who have served in J&K for a total period of 10 years or children of parents who fulfil any of the conditions in the rule will also get domicile status.
  3. Besides, all those migrants and their children who are registered with the relief and rehabilitation commissioner will be granted a domicile certificate by providing documents such as electoral rolls of 1988, proof of registration as a migrant in any State in the country or any other valid document.
  4. Children of those residents of Jammu and Kashmir who reside outside the Union Territory in connection with their employment of business or other professional or vocational reasons have become eligible for grant of domicile status provided that the parents fulfil the conditions provided under Section 3A (1).

JOB RESERVATIONS:

“Section 5A of J&K Reorganization (Adaptation of State Laws) Order, 2020 state that:-

Subject to the provisions of this Act, no person shall be eligible for appointment to a post carrying a pay scale of not more than Level-4 (25500) unless he is a domicile of the Union territory of Jammu and Kashmir.”

Explanation:

  1. Section 5A of Civil Services Act provides for the domicile reservation for the purpose of appointment of any post carrying a pay scale of not more than Level – 04 under the UT of J&K or under local or any other (other than cantonment board) within the UT of J&K.
  2. Therefore, lowest level of non-gazetted rank jobs would be reserved exclusively for the Jammu and Kashmir domiciles.

How to apply for Domicile Certificate

Domicile Certificates are issued by the Tehsildar Concerned where the applicant is residing. For Online certificates Citizens can apply through https://jk.gov.in. Citizens first have to register with their full particulars as required on the web site. After registration, citizens can login into the web site and apply for Domicile Certificate. Citizens must ensure that they have selected proper Tehsil at the time of registration. Updation of Tehsil of applicant can be done after successful login by the applicant under “My Profile” option.

The permanent resident certificate (PRC) holders and other applicants can apply for the issuance of domicile certificate online by providing their Aadhaar number and receive the certificate through online mode.

Introduction

The Indian government on July 29, 2020 approved the New Education Policy (NEP) and renamed the Ministry of Human Resource and Development as the Ministry of Education. The existing NEP was framed in 1986 and revised in 1992. The New Education Policy was part of the Bharatiya Janata Part’s manifesto ahead of the 2014 general election.

Here are some highlights about the New Education Policy:

  • Universalise Primary education in India
    The NEP aims to universalize primary education (3 to 6) years in the country in the next five years. It also aims to provide a foundational literacy and numeracy for all by 2025.
  • The 10+2 system will be divided into a 5+3+3+4 format
    The current 10+2 system to be replaced by a new 5+3+3+4 curricular structure corresponding to ages 3-8, 8-11, 11-14, and 14-18 years respectively. The first five years will be the foundation stage, including three years of primary education and class 1 and 2. The next three years will be the ‘preparatory’ stage. The next three years between class six and class eight will be the ‘middle’ stage. The last stage will be the ‘high’ stage comprising class 9, 10, 11, and 12..
  • MPhil courses to be discontinued
    Students who wish to pursue research can do it without MPhil. All courses at UG, PG, PhD level to be interdisciplinary.
  • All higher education institutions, except legal and medical colleges, to be governed by a single regulator.
  • Reforms in board exams Patterns
    All the board exams will be held in two languages. Each subject offered in the board exam will have an objective, as well as description exam. Moreover, board exams are to be based on knowledge application.
  • Students to learn coding from class 6
    The NEP aims to encourage mathematical and scientific thinking in students. School curriculum will be reduced to core concepts; and include the integration of vocational education from class 6 under the new National Education Policy . Moreover, students will be allowed to learn coding from class 6.
  • Undergraduate colleges to be autonomous:
    Under Graded Autonomy, Academic, Administrative and Financial Autonomy will be given to colleges, on the basis of the status of their accreditation.
  • Proposal to conduct a common entrance exam for all colleges
    The government has proposed to conduct a single entrance for all higher education institution in India. The exam, however, will be optional.
  • Home language, mother tongue or regional language to be medium of instruction upto class 5.
    Under NEP, all the students can study up to class 5 in their home/mother tongue or regional language. If possible, the students can also learn in their respective languages after grade 5. Moreover, the government will also develop e-courses in eight regional languages initially.
    NEP 2020 is the most ground breaking reform has made and a turning point that will change how new Indians will be like.

Strengths:

  • The Practical knowledge and fundamental knowledge will improve.
  • Agricultural Studies included under Professional Course.
  • Every Child will come out of School adept in at least one Skill
  • No Rigid Separation between Arts & Sciences, between Curricular and extra-Curricular activities, between Vocational and Academic streams
  • Students will have increased flexibility and choice of subjects.

Weakness:

  • This policy does not clarify that, to which board this Policy will apply.
  • There will be major impact on the public school due to lack of infrastructure.
  • The implementation of the new education policy has not been clarified.
  • The implementation of new education policy will affect student majorly as it will be difficult to grab the drastic change.
  • There should be self defense training should be implemented to every school as atrocity is including day by day.
  • There should be a single uniform board.
  • A lot of demand concerning removing the bias against girl students remains unfulfilled (www.behanbetibachao.in)

Keypoints :
Overview :

  1. 10+2 board structure is dropped
  2. New school structure will be 5+3+3+4
  3. Upto 5 Pre-school, 6 to 8 Mid School, 8 to 11 High School , 12 onwards Graduation
  4. Any Degree will be 4 years
  5. 6th std onwards vocational courses available
  6. From 8th to 11 students can choose subjects
  7. All graduation course will have major and minor
    Example – science student can have Physics as Major and Music as minor also Any combination he can choose
  8. All higher education will be governed by only one authority.
  9. UGC AICTE will be merged.
  10. All University government, private, Open, Deemed, Vocational etc will have same grading and other rules.
  11. New Teacher Training board will be setup for all kinds of teachers in country, no state can change
  12. Same level of Accreditation to any collage , based on its rating collage will get autonomous rights and funds.
  13. New Basic learning program will be created by government for parents to teach children upto 3 years in home and for pre school 3 to 6 Multiple entry and exit from any course
  14. Credit system for graduation for each year student will get some credits which he can utilize if he takes break in course and come back again to complete course
  15. All schools exams will be semester wise twice a year
  16. The syllabus will be reduced to core knowledge of any subject only
  17. More focus on student practical and application knowledge
  18. For any graduation course if student complete only one year he will get a basic certificate, if he complete two years then he will get Diploma certificate and if he complete full course then he will get degree certificate. So no year of any student will be wasted if he/she breaks the course in between.
  19. All the graduation course feed of all Universities will be governed by
    single authority with capping on each course.

The content of this document do not necessarily reflect the views / position of RKS Associate, but remains a probable view. For any further queries or follow up please contact RKS Associate at [email protected]