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Aligarh Muslim University’s Minority Status: A Legal and Historical Examination.

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INTRODUCTION:

One of the oldest and most prominent universities in India, Aligarh Muslim University (AMU), has been involved in a legal dispute concerning its minority status for many years. Muslim reformer Sir Syed Ahmed Khan established AMU as the Muhammadan Anglo-Oriental College in 1877 with the intention of preserving Islamic values while addressing Muslim educational lag. The Muslim University Association and MAO College became a part of AMU when the Aligarh Muslim University Act of 1920 took effect. Whether AMU qualifies for minority status under Article 30 of the Indian Constitution in the present circumstances is the question.

HISTORICAL BACKGROUND:

Muhammadan Anglo-Oriental College, also known as Aligarh Muslim University, was founded in 1877 by Sir Syed Ahmed Khan. It was later incorporated by the Aligarh Muslim University Act of 1920.

In 1965, the Act underwent additional amendments, redistributing the Court’s powers among various bodies, including the executive, with the President of India nominating the governing body.

In S. Azeez Basha & Anr. v. Union of India, the dispute started in 1967. The petitioners contested AMU Act amendments, claiming that their rights under Article 30(1) namely, the right to establish and administer educational institutions had been violated. According to the Supreme Court, the efforts of the Muslim minority may have led to the 1920 Act’s passage. That being said, this does not mean that Aligarh University was founded by the Muslim minority in accordance with the 1920 Act.

In 1981, the Act underwent yet another amendment that defined ‘university’ as an establishment “established by the Muslims of India.” AMU instituted reservation policies in 2005, designating Muslim candidates for half of the postgraduate medical seats. Using the Supreme Court’s ruling in Azeez Basha as guide, the Allahabad High Court heard a challenge to this policy that same year. The argument was that since AMU is not a minority institution, the reservation is void.

The Allahabad High Court struck down the reservation policy, ignoring the 1981 amendment and ruling that AMU was not a minority institution based on Azeez Basha, rejecting the Union government’s and the university’s argument that the 1981 amendment rendered the Azeez Basha precedent invalid.

The reservation policy was put on hold in 2006 after an appeal was filed with the Supreme Court. The National Democratic Alliance government denied AMU’s minority status in 2016 by withdrawing from the appeal.

A three-judge bench referred the Azeez Basha ruling to a seven-judge bench on February 12, 2019, for review. The case was finally taken up by a seven-judge bench led by Chief Justice of India D.Y. Chandrachud on October 12, 2023.

LEGAL PROVISIONS INVOLVED:

All linguistic and religious minorities have the fundamental right to establish and administer any kind of educational institution they choose, according to Article 30(1) of Part III of the Constitution. Article 30(2) mandates that the State provide ‘equality of treatment’ to all educational institutions receiving aid, irrespective of whether they belong to minority or not.

PRESENT POSITION OF THE ISSUE:

In this case, the Supreme Court addresses two issues concerning the AMU’s minority status.

  1. What are the criteria for granting minority status to educational institutions under Article 30 of the Constitution?
  2. Can educational institutions established by parliamentary statute qualify for minority status under Article 30 of the Constitution?

Dr. Dhavan, the petitioners’ counsel, argued that a minority educational institution should not lose its minority status just because it is subject to statutory regulation and that the constitutional viewpoint, which supports the integration of liberal and religious education, should be taken into account.

He contended that the Azeez Basha ruling was in conflict with itself since the top court determined that a university had to be recognised by law for its degrees to be recognised. Nonetheless, the court found that AMU would lose its minority status if the statute were to recognise it.

Dr. Dhavan contended that this would nullify Article 30 and subordinate a fundamental right to a statute by requiring all minority institutions to apply for recognition under a statute and give up their minority status.

Dr. Dhavan emphasized that, for the purposes of Article 30, “established” includes terms like “found,” “recognise,” “confirm,” and “admit.” In response to a question concerning the distinction between “found” and “bring into existence,” he explained that the former refers to incorporation while the latter takes into account prior circumstances.

The respondent’s attorney is Tushar Mehta, the Solicitor General of India. He contended that unlike “nationalist” institutions that opposed and denounced the British government, Solicitor General Tushar Mehta asserted that AMU chose to be a “loyalist” institution and ceded its minority status to the government. Azeez Basha, he said, accepted this ceding of rights.

The SG contended in the Azeez Basha case that the ruling only applied to the 1920 Act and did not create a law that was generally applicable, implying that a university loses its minority status upon incorporation. He made it clear that the 1920 Act was the main focus of the Azeez Basha case, and that AMU is not a minority university under that Act.

Underlining the significance of AMU as a national university, Tushar Mehta asked the Court to consider the matter from a social justice standpoint in order to ensure that students from the SC/ST/SEBC sections have equal access to it. Currently, between 70 to 80 percent of AMU students identify as Muslims.

CONCLUSION:

From January 10 to February 1, 2024, the seven-judge bench, presided over by Chief Justice of India DY Chandrachud, heard arguments for eight full days.

The Chief Justice of India has reserved the matter to make a decision at a later time after considering all of the arguments.

The question of whether AMU can assert its minority status and whether the Azeez Basha ruling ought to be reversed will be decided by the court. In addition to AMU, this decision has significant ramifications for minority universities throughout India.

To sum up, the AMU minority status case emphasizes how important it is to strike a careful balance between historical context, legal interpretations, and constitutional rights. AMU’s minority status is in jeopardy while we wait for the Supreme Court’s ruling.

 

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Administration of the Nexus: National Security vs. Privacy in Government Surveillance Programmes

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INTRODUCTION:

The dispute over privacy rights vs national security measures is escalating up in an era of complex global challenges and rapid technology breakthroughs. All around the world, governments struggle to protect their populations from possible dangers without compromising the rights to privacy that each individual has under diverse legal frameworks. Like many other countries, India must strike a careful balance, and recent events have provided insight into the changing nature of government monitoring programmes and their ramifications.

In a landmark decision rendered on August 24, 2017, the Indian Supreme Court upheld the basic right to privacy guaranteed by Article 21 of the Indian Constitution. This important ruling gave people a safeguard against legislative or executive measures infringing on their personal rights, and it was a turning point in the development of India’s legal system. Individual autonomy and dignity are enhanced by the acknowledgement of privacy as a basic right, which is necessary for the enjoyment of other fundamental freedoms protected by the Constitution.

RECOGNISING THE DYNAMICS:

The basic conflict between individual rights and the goals of collective security is at the core of the privacy vs national security argument. Strong surveillance measures’ proponents contend that improved data collecting and monitoring are essential instruments in the fight against a variety of dangers, such as cybercrime, terrorism, and international organised crime. They argue that in order to protect public safety and security, proactive intelligence collection and monitoring are required to detect and eliminate any threats before they arise.

On the other hand, proponents of privacy rights express grave worries about the degradation of civil liberties and the possibility of misuse associated with large-scale monitoring initiatives. They contend that unbridled government meddling in personal affairs not only betrays the deeply held ideals of liberty and self-determination but also greatly increases the possibility of abuse, discrimination, and unjustified monitoring of defenceless people. Furthermore, the careless gathering and archiving of private information prompts concerning queries regarding data protection, abuse, and people’s susceptibility to illegal access and use.[1]

PRESENT SITUATION IN INDIA:

Significant advancements in government monitoring practices have occurred in India in recent years, sparking discussions, court cases, and public debate over the boundaries of privacy, national security, and individual rights. Among the noteworthy advancements are:

  1. Aadhaar Dispute: Since its introduction by the Indian government in 2009, the Aadhaar biometric identification project has been embroiled in legal disputes and controversy about its potential effects on privacy and monitoring. Aadhaar’s supporters contend that it makes targeted welfare programmes and efficient service delivery possible, but detractors point out that Aadhaar’s mandatory connection to a number of basic services, the possibility of data breaches, and the inadequacy of protections against abuse and monitoring by the government are all causes for concern.
  2. Social Media Monitoring: With the growth of digital communication channels and social media platforms, law enforcement authorities have greater difficulties in keeping an eye on and countering online dangers such as radicalization, cyberbullying, and disinformation. Concerns regarding censorship, privacy invasion, and the potential to stifle dissent and freedom of expression have been raised by the Indian government’s recent efforts to increase monitoring and surveillance of social media platforms. These initiatives include the proposal for a Social Media Communication Hub and the enactment of intermediary liability rules.
  3. Facial Recognition Technologies: In India, there has been a lot of discussion and investigation surrounding the use of facial recognition technology by police enforcement for things like surveillance, criminal identification, and public safety. Strong legal protections and moral principles are essential to reduce dangers and defend individual rights because of worries about the precision, dependability, and possible abuse of face recognition technology, as well as the lack of explicit laws and supervision procedures.[2]

 CONSEQUENCES FOR GOVERNMENT ACTIONS AND POLICIES:

The identification of privacy as an essential entitlement places noteworthy limitations on governmental policies and procedures that might potentially violate people’s right to privacy. The court’s decision forbids the state from passing legislation or implementing other measures that unnecessarily violate the privacy of its residents without a sufficient basis. Even while the right to privacy is not unassailable and may be subject to legitimate limitations for the sake of public safety, national security, or morality, any such limitations must pass severe legal muster and follow the proportionality and necessity requirements.

The verdict has significant ramifications for government programmes like the Aadhaar biometric identity system. Aadhaar has been marketed as a way to improve financial inclusion and expedite service delivery, although worries have been expressed over privacy violations and data security lapses. The ruling by the Supreme Court emphasises how important it is to have strong protections and accountability systems in place to make sure that Aadhaar adheres to privacy laws and respects people’s autonomy and consent.[3]

OBSTACLES & THINGS TO REFLECT ABOUT:

Even while privacy is acknowledged as a basic right, there are still a number of obstacles to securing people’s privacy in the digital age. Rapid technical progress and the global reach of cyberspace provide previously unheard-of difficulties for data security and privacy protection. Concerns regarding surveillance, data breaches, and algorithmic discrimination have been raised by the extensive collecting, processing, and sharing of personal data brought about by the growth of digital platforms, social media networks, and mobile apps.

Furthermore, the difficulties in regulating and enforcing privacy laws are made worse by the lack of comprehensive data protection legislation. The necessity of a strong data protection law cannot be emphasised, even if the Justice B.N. Srikrishna Committee is developing a framework for the protection of personal data. Legislation of this kind ought to achieve a compromise between upholding people’s right to privacy protection and encouraging economic development. It should set down precise guidelines for the gathering, handling, and sharing of personal data while giving people authority over it and making companies responsible for privacy infringements and data breaches.

There is an urgent need for institutional systems to supervise privacy enforcement and compliance in addition to legal measures. With legislative authority and independence, a specialised National Authority for Data Protection and Privacy might be essential in monitoring adherence to privacy laws, looking into complaints, and punishing infringers. Such an authority may advance responsible data practices and boost trust in India’s digital economy by cultivating a culture of privacy compliance and responsibility.[4]

CASE LAWS:

  1. Justice K.S. Puttaswamy (Retd.) vs. Union of India (2017): The Indian Supreme Court upheld the right to privacy as a basic right guaranteed by Article 21 of the Indian Constitution in this historic ruling. The argument in the lawsuit was that the Aadhaar biometric identity programme violated people’s right to privacy and was thus unconstitutional. According to the ruling of the court, privacy is a necessary component of personal freedom and dignity and is necessary in order to exercise other fundamental rights. It underlined how important it is to have a strong legal system to defend individual rights against government interference. The Puttaswamy ruling created a solid basis for privacy rights in India and established a standard for matters pertaining to data protection and government monitoring in the future.[5]
  2. Internet Freedom Foundation vs. Union of India (2020): The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, which control online content regulation and intermediary liability in India, were challenged in this case for being unconstitutional. The petitioners claimed that by placing burdensome requirements on digital platforms and permitting government monitoring of online activity, the regulations infringed both on the rights to privacy and freedom of speech and expression. The Delhi High Court served notices on the government, requesting comments on the laws’ constitutionality and their effects on freedom of speech and privacy. The matter is awaiting decision.[6]
  3. SFLC.in vs. Union of India (2020): The Aarogya Setu mobile application, developed by the Indian government for contact tracking and COVID-19 surveillance, was challenged in this case for being unconstitutional. The petitioners raised worries about privacy violation and possible surveillance threats by arguing that the app lacked transparency, accountability, and sufficient data protection mechanisms. The government was ordered by the Kerala High Court to guarantee that data protection regulations are followed and to address privacy and security issues brought out by the petitioners. The legal matter is still pending.[7]
  4. Foundation for Media Professionals vs. Union Territory of Jammu and Kashmir (2020): This case contested the internet bans and limitations put in place in Jammu and Kashmir, the Union Territory, when Article 370 of the Indian Constitution was revoked. The petitioners claimed that in addition to impeding access to necessary services and information, the extended internet shutdowns breached basic rights, such as the right to freedom of speech and expression. The Supreme Court of India underlined the necessity and appropriateness of implementing internet limits, even as it acknowledged the significance of national security reasons. It gave the administration instructions to examine and defend the ongoing limitations, striking a balance between personal freedoms and security considerations.[8]

CONCLUSION:

A turning point in India’s constitutional law was reached when privacy was acknowledged as a basic right, confirming the inherent worth of privacy in a democracy. India has to defend people’s right to privacy first and foremost as it starts its digital transformation path, but it also needs to support innovation and economic growth. To address the complex issues of privacy in the digital age, a comprehensive data protection law must be formulated in conjunction with strong institutional structures for privacy supervision and enforcement. India can create a robust and inclusive digital economy that respects people’s rights and fosters sustainable progress by maintaining privacy as a fundamental right and a business need.

By: Aastha Ganesh Tiwari

[1]https://www.giga-hamburg.de/en/publications/giga-focus/digital-surveillance-and-the-threat-to-civil-liberties-in-india

[2]https://blog.ipleaders.in/state-surveillance-india-threat-privacy/#What_is_the_way_ahead

[3]https://www.scconline.com/blog/post/2023/08/03/the-fine-balance-surveillance-security-and-the-right-to-privacy/

[4]https://docs.manupatra.in/newsline/articles/Upload/62E569B9-547B-4144-80AC-03A9EBFC45DA.pdf

[5]https://privacylibrary.ccgnlud.org/case/justice-ks-puttaswamy-ors-vs-union-of-india-ors#:~:text=Case%20Brief&text=The%20nine%20Judge%20Bench%20in,of%20dignity%2C%20autonomy%20and%20liberty.

[6]https://www.livelaw.in/pdf_upload/pdf_upload-357441.pdf

[7]https://sflc.in/sflcins-writ-petition-challenging-arbitrary-internet-shutdowns-during-examinations-supreme-court/

[8]https://desikaanoon.in/case-study-foundation-of-media-professionals-v-union-territory-of-jammu-and-kashmir/#:~:text=INTRODUCTION%3A-,Foundation%20of%20Media%20Professionals%20v.,also%20called%20as%204G%20case.

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Navigating India’s Religious Tapestry: The Tightrope Between Freedom and Regulation in Anti-Conversion Laws.

Articles

INTRODUCTION

As a fundamental human right, religious freedom is the cornerstone of democratic values around the world. The difficult balance between individual liberty and governmental involvement is being scrutinized in India, a country recognised for its unique religious tapestry, mainly because of the presence of anti-conversion legislation. These state-by-state disparate legal systems purport to prohibit forced or fraudulent religious conversions. But these rules’ effects on the inalienable freedom to practice and spread one’s religion have provoked heated discussions. The legal environment has changed since the first anti-conversion law was passed in Odisha in 1967, and several states have since passed their own versions of this kind of legislation. These regulations, which are rooted in worries about preserving social peace and defending the weak, walk a tightrope between defending religious liberty and averting alleged risks to social order. Legal uncertainties and issues have arisen from the complex interaction between the state’s need to prohibit false conversions and constitutional guarantees of religious freedom.

HISTORICAL BACKGROUND

India’s anti-conversion laws have their origins in historical worries about religious conversions, especially those that are thought to be forced or fraudulent. Since the state of Odisha passed the first anti-conversion law in 1967, other states have done the same, each passing a different version of the legislation. These rules are supposed to protect vulnerable people, stop forced conversions, and uphold social harmony.

LEGAL FRAMEWORK:

Article 25 of the Indian Constitution ensures the freedom of its citizens to freely profess, practice, and propagate their religion. This right is subject to reasonable limitations and is not unqualified. Anti-conversion legislation is frequently constructed to fall within the bounds of these justifiable constraints, aiming to reconcile the defense of religious liberty with the avoidance of harmful conversions. Anti-conversion laws generally prohibit religious conversions that are achieved by coercion, deception, or seduction. These clauses shield people against being forced against their will to convert to a different religion by focusing on actions deemed to be exploitative or forceful. Concerns concerning possible abuse and interference with lawful religious activity have been brought up by the interpretation and application of these regulations.

In the case of Lata Singh v. State of Uttar Pradesh, the Supreme Court affirmed people’s freedom to marry anybody they choose, regardless of their social standing, caste, or religion. It proclaimed as a violation of the right to freedom of choice any interference with this right by the government or others.

CHALLENGES TO RELIGIOUS FREEDOM:

Anti-conversion laws, according to their detractors, restrict the freedom to proselytize and foster a climate of distrust surrounding religious activity, so endangering religious freedom. Certain statutes’ ambiguous phrasing lends itself to arbitrary interpretations by law enforcement, which can result in arbitrary acts. This could hinder the free flow of ideas and discourage religious pluralism. The meaning of “force,” “fraud,” and “inducement” in relation to religious conversions is one major area of legal difficulty. It is difficult to discern between acts that can be considered coercive and true religious outreach because there are no clear standards. The impact of this ambiguity on religious minorities is disproportionate because it allows for abuse and selective targeting. The concept of consent is one of the main topics covered by anti-conversion legislation. Although people are free to convert at will, regulations are frequently passed to forbid forced conversions. The onus of proof rests on the parties in question when attempting to draw a boundary between coercion and free will.

In the case of S. Pushpabai v. C.T. Selvaraj, the Supreme Court upheld people’s freedom to convert to any other faith as long as it is sincere and voluntary. It was underlined that religious freedom is violated by any kind of compulsion or deception related to religious conversions.

STATE VARIATIONS:

Different states in India may have varying approaches to anti-conversion laws, and the legal landscape can be complex. Some states have enacted legislation to regulate or restrict religious conversions, while others do not have specific laws on this matter. States in India which have different anti-conversion legislation, which adds even more complexity. While some states have more permissive laws, others have harsher rules. These laws’ constitutionality is called into doubt by their lack of uniformity, and it is possible that they will infringe upon the right to equality protected by Article 14 of the Constitution.

LEGAL CHALLENGES:

Anti-conversion laws have been the target of multiple judicial challenges that cast doubt on their constitutionality. The freedom of speech and expression includes the right to propagate religion, which the Supreme Court of India has upheld in a number of judgments. The judiciary has acknowledged the state’s right to control religious conversions in order to protect the public interest and avoid exploitation, nonetheless. International attention has been focused on India’s anti-conversion laws after human rights organisations voiced concerns about possible breaches of religious freedom. In order to bring domestic legislation into compliance with international standards, India must carefully balance its commitment to international human rights standards, such as the International Covenant on Civil and Political Rights (ICCPR).

SUGGESTIONS FOR THE WAY FORWARD:

A more unified set of anti-conversion laws should be established across state lines to allay worries about their constitutionality and possible violations of the right to equality. This could be accomplished by enacting extensive national law that upholds a uniform legal framework while respecting the diversity of religious practices. One crucial area that has to be improved is the meanings of phrases like “force,” “fraud,” and “inducement.” By doing so, discriminatory targeting and possible misuse would be avoided and arbitrary interpretations would be lessened, ensuring a more equitable execution of the law. When deciding instances involving anti-conversion laws, the judiciary ought to exercise caution and take into account the subtleties of religious liberty as well as the possible effects on communities of colour. This entails defending the concepts of choice and expression freedom consistently. The International Covenant on Civil and Political Rights (ICCPR) and other international human rights agreements should be complied with by India in terms of anti-conversion laws.

CONCLUSION

The controversy surrounding India’s anti-conversion laws illustrates the nuanced relationship between religious liberty and governmental control. It’s critical to strike a balance between addressing justifiable worries about forceful conversions and protecting individual liberties. A more complex and equitable approach can be facilitated by respect to international human rights standards, consistency in state legislation, and clarity in legal terminology. Maintaining the constitutional values that are the cornerstone of India’s democracy is crucial as it negotiates this complex terrain.

REFRENCES:

  1. https://www.nextias.com/blog/anti-conversion-laws/#What_is_the_Need_for_Anti-Conversion_Laws
  2. https://www.uscirf.gov/publications/indias-state-level-anti-conversion-laws
  3. A Study of Compatibility of Anti-Conversion Laws with Right to Freedom of Religion in India, By: Furquan Ahmad, Vishnu Konoorayar ,Puneeth P, K.N.ChandrasekharanPillai, Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2359250
  4. Sarah Claerhout, and Jakob De Roover. “The Question of Conversion in India.” Economic and Political Weekly 40, no. 28 (2005): 3048–55. http://www.jstor.org/stable/4416875.
  5. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3876022

 

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Comprehensive Insights into the Micro, Small, and Medium Enterprises (MSME) Development Act of 2006 : Key Provisions and Significance in India

Articles ,

Introduction

The MSME Development Act, enacted in 2006, was introduced to address various issues affecting Micro, Small, and Medium Enterprises (MSMEs), including the scope and investment limits of the sector. The primary objective of the act is to foster the growth of MSMEs and boost their competitiveness. It establishes a legal framework for recognizing the concept of an “enterprise,” encompassing both manufacturing and service entities. Notably, the act defines medium enterprises for the first time and aims to integrate the three tiers of MSMEs, namely Micro, Small, and Medium. The act grants authority to the Central Government to implement programs, issue guidelines, and provide instructions to promote the development and competitiveness of MSMEs.

In India, enterprises are broadly categorized into two groups: (i) Manufacturing and (ii) Services. These classifications are further detailed under Section 7 of the MSME Act, where enterprises are categorized as Micro, Small, and Medium based on specific criteria.

Under the Atmanirbhar Bharat Abhiyan (ABA), the Central Government, responding to the ongoing COVID-19 pandemic and aiming to fortify the economic framework, has revised the classification criteria. Notably, the distinction between Manufacturing and Service Industries has been eliminated, and a unified set of criteria for both investment and annual turnover has been introduced:

  • Micro Enterprise: Investment up to Rs. 1 Crore and Turnover up to Rs. 5 Crore.
  • Small Enterprise: Investment up to Rs. 10 Crore and Turnover up to Rs. 50 Crore.
  • Medium Enterprise: Investment up to Rs. 50 Crore and Turnover up to Rs. 250 Crore.

This initiative under the ABA also encompasses various additional provisions for the MSME sectors, including increased incentives, collateral-free loans, and subsidies.

The Micro and Small entities encompass a range of organizational structures, including: Company, Partnership Firm, Association of Persons, Hindu Undivided Family, Co-operative Society, Proprietorship.

Registration of MSME/Memorandum of MSME

The application for MSME registration is submitted through the Ministry of Corporate Affairs website, specifically the MSME Registration Portal, in the prescribed format. The attached documents must be self-certified and uploaded with the application. Upon acceptance, a registered email ID along with the Udyog Aadhar Number and Certificate of Registration will be issued. It’s worth noting that offline registration is also an available option.

Introduced by the Ministry of Corporate Affairs on May 1st, 2019, the e-form MSME I is a significant development. This form is mandatory for companies that procure goods or services from Micro or Small Enterprises and have outstanding payments due for more than 45 days from the date of acceptance or deemed acceptance of the provided goods or services. The Specified Companies (furnishing of information about payment to micro and small enterprise suppliers) Order, 2019, dated January 22, 2019, requires these companies to submit a half-yearly return to the MCA detailing the amount of payment due to Micro and Small Enterprises and the reasons for any payment delays.

Before commencing their operations, any micro, small, and medium enterprise (MSME) has the option to submit a Udyog Aadhaar Memorandum (UAM) in Form-I. This memorandum can be filed conveniently online through the official website of the Ministry of Micro, Small and Medium Enterprises, Government of India (http://udyogaadhaar.gov.in). By doing so, the enterprise can promptly receive a unique Udyog Aadhaar Number (UAN). Alternatively, a hard copy of the duly filled Form I can be submitted to the relevant District Industries Centre (DIC) or the Office of the Micro, Small and Medium Enterprise-Development Institute (MSME-DI) under the Development Commissioner, MSME. Upon submission, a Udyog Aadhaar Registration Certificate in Form II will be generated and sent to the enterprise’s email address provided in the UAM.

For existing MSMEs, it is mandatory to file the Memorandum within One Hundred and Twenty (120) days from the commencement of the Act. The UAM/Memorandum is a streamlined, one-page online registration system for MSMEs based on self-certification. This innovative approach replaces the earlier Entrepreneurs’ Memorandum (EM part-I & II), marking a significant step toward enhancing the ease of doing business for MSMEs in India.

Qualifying Criteria

  1. The Specified Company must have received goods and/or services from Micro or Small Enterprises.
  2. Payment must be due or not paid to such Micro or Small Enterprise for 46 days from the date of acceptance of the provided goods and/or services.

Time Period

The form, MSME Form 1, is to be filed within 30 days of the completion of the corresponding half-year. Essentially, companies are required to file this form as a half-yearly return by October 31st of the year (for the period from April to September) and again by April 30th of the next year (for the period from October to March) in every financial year, relating to outstanding payments to MSMEs.

Exceptions to Rule

  1. Applies only to Specified Companies whose payment to the supplier MSME exceeds 45 days from the date of acceptance or deemed acceptance of goods and/or services.
  2. If the payment against the supplier exceeds 45 days but the supplier declares that they do not fall under the category of Micro or Small Enterprises.

Penalty

In case of non-compliance, as per Section 405(4) of the Companies Act, 2013, a fine extendable to Rs. 25,000 is applicable to the company. Additionally, any officer in default under the Specified Company may face punishment, including imprisonment up to 6 months or a fine ranging from Rs. 25,000 to Rs. 3 Lakhs, or both.

Provisions Governing Delayed Payments in MSME Act

Sections 15-24 of the Micro, Small and Medium Enterprises Development (MSME) Act, 2006, address concerns related to delayed payments to Micro and Small Enterprises (MSEs) by Buyers. According to Section 15, Buyers must make payments to Suppliers based on their commercial understanding, not exceeding 45 days from the acceptance or deemed acceptance of goods and services. Section 16 imposes compound interest on delayed payments to Supplier units.

In case of disputes over due amounts, Section 18 outlines the procedure to be followed, with a mandated resolution within 90 days. If the Buyer challenges the award or decree, Section 19 requires a deposit of 75% of the stipulated amount.

The MSME Samadhaan Portal, established by the Ministry of Micro, Small and Medium Enterprises, allows MSEs to file online applications for delayed payments. It provides information about pending payments from various entities and facilitates complaints, viewed by MSEFC Council for action. The portal aims to efficiently monitor delayed payments and publicly disclose information to pressure defaulting parties.

The MSMED Act, 2006 (Sections 15-24), mandates State Governments to establish Micro and Small Enterprise Facilitation Councils (MSEFC) for dispute resolution on delayed payments (Sections 20 and 21).

Prerequisites for MSEFC Claim:

  1. Udyog Aadhar Memorandum (UAM) or Udyam Registration before the dispute.
  2. A valid claim against the Buyer, supported by a written purchase agreement and a post-UAM or Udyam registered invoice.
  3. The statutory payment period of 45 days from acceptance or deemed acceptance of goods/services must have elapsed.

Claim Settlement Proceedings Under the MSME Act

Sections 15-24 of the Micro, Small and Medium Enterprises Development (MSME) Act, 2006, specifically focus on issues related to delayed payments to Micro and Small Enterprises (MSEs) by Buyers. According to Section 15, payment from the Buyer to the Supplier must adhere to their commercial understanding but should not exceed forty-five (45) days from the acceptance or deemed acceptance of goods and services. Section 16 outlines the imposition of compound interest on delayed payments to Supplier units.

In the event of disputes over due amounts, Section 18 establishes the procedure to be followed, with a mandated resolution period of ninety (90) days. If the Buyer challenges the award or decree, Section 19 requires a deposit of 75% of the stipulated amount. The MSME Samadhaan Portal facilitates online applications for delayed payments, aiming to efficiently monitor and publicly disclose information to pressure defaulting parties.

Filing a Complaint through the Samadhaan Portal

To file a complaint on the MSME Samadhaan Portal, MSEs must have a Udyog Aadhar Memorandum (UAM) or Udyam Registration before the dispute. The claim against the Buyer should be valid, supported by a written purchase agreement and a post-UAM or Udyam registered invoice. Additionally, the statutory payment period of 45 days from the date of acceptance or deemed acceptance must have lapsed.

The application process involves filing the form online on the Samadhaan Portal, accessible at https://MSME.gov.in/. Detailed information as specified in the Act is required, accompanied by intensive scrutiny of relevant documents such as purchase agreements, invoices, and notices served. The application is automatically forwarded online to the concerned Micro and Small Enterprise Facilitation Council (MSEFC) established by the State/UTs. After 15 days of online filing, the MSEFC registers the case and takes action on applications related to delayed payment.

Claim Settlement Process

After the relevant Micro and Small Enterprise Facilitation Council (MSEFC) accepts the application, it issues a notice to the buyer, demanding immediate payment within a specified timeframe. In the event that the buyer fails to initiate payment during the stipulated period mentioned in the notice, the MSME can proceed to file an application for default in payment, attaching the necessary documents on the portal as per the Act’s provisions.

Upon the filing of a reference application for a dispute under Section 17 (Recovery of delayed payments) within Section 18 of the MSME Act, the Council undertakes conciliation independently or seeks the assistance of an institution or center providing alternate dispute resolution services. Notably, for conducting such conciliation, the provisions of sections 65 to 81 of the Arbitration and Conciliation Act, 1996 (26 of 1996) apply to the dispute as if the conciliation were initiated under Part III of the 1996 Act.

If conciliation proves unsuccessful, and the parties cannot reach an agreement, the Council proceeds to address the dispute through arbitration. It may refer the matter to an institution or center providing alternate dispute resolution services. The provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) apply to the arbitration proceedings as if they were conducted in accordance with an arbitration agreement referred to in the arbitration agreement.

In the case of Jharkhand Urja Vikas Nigam Limited Vs State of Rajasthan & Ors. [Civil Appeal No. 2899 of 2021], the Supreme Court clarified that conciliation and arbitration proceedings under the MSME Act cannot be combined if the appellant did not submit a response during the conciliation stage. According to the legislative mandate, the Council is obligated to initiate an arbitration procedure if the conciliation procedure fails.

Pre-deposit of Award Amount

Section 19 of the MSME Act mandates that any appeal challenging a decree, award, or order made by the Council or any alternate dispute resolution institution referred by the Council requires the appellant (excluding the supplier) to deposit 75% of the awarded amount as a pre-deposit before the court entertains the application. The Supreme Court, in the case of Gujarat State Disaster Management Authority vs. Aska Equipments Limited (2022) 1 SCC 61, emphasized the mandatory nature of this requirement. The court may, however, allow the pre-deposit to be made in instalments if undue hardship is demonstrated.

According to Section 20, State Governments are obligated to establish Micro and Small Enterprises Facilitation Councils, defining their jurisdictions. These Councils adjudicate disputes between suppliers and buyers across India. Section 21 outlines that the Council should have three to five members appointed from various categories, including a Chairman with administrative control of small-scale industries, representatives of micro and small industry associations, representatives from banks and financial institutions supporting these enterprises, and individuals with expertise in industry, finance, law, trade, or commerce.

Overriding Effect of Claim Settlement Proceedings Under MSME Act over Arbitration and other Applicable Laws

Section 24 of the MSME Act establishes an overriding effect of the provisions from Section 15 to Section 23 over those of the Arbitration Act, and this aspect has been subject to extensive judicial scrutiny.

In the case of Principal Chief Engineer M/s. Manibhai and Bros (Sleeper) [Diary 16845/2017], the Supreme Court upheld the Gujarat High Court’s judgment regarding the interpretation of Section 18. The Gujarat High Court emphasized that the MSME Act, being special legislation, takes precedence, and parties governed by it are obligated to adhere to the mechanisms outlined in Section 18 of the Act.

Applicability of the Limitation Act to Disputes/Claim Settlement Proceedings Under the MSME Act 2006

The issue of the applicability of the Limitation Act to disputes and claim settlement proceedings under Section 18 of the MSME Act has historically been a matter of uncertainty. However, the recent judgment by the Hon’ble Supreme Court of India in the case of Silpi Industries and Ors. Vs. Kerala State Road Transport Corporation and Ors. 2021(224) AIC 18 has provided clarity to this discussion.

The Court highlighted that in cases arising under Section 17 of the MSME Act, a reference is made to the Council. Subsequently, the parties undergo conciliation facilitated by the Council. If the conciliation process proves unsuccessful, the Council then refers the case for arbitration, administered either by itself or by any institution or center deemed suitable by the Council, as per the provisions of Section 18 of the MSME Act.

The Supreme Court, drawing on the precedent set by the case of Andhra Pradesh Power Coordination Committee & Ors. v. Lanco Kondapalli Power Ltd. & Ors., (2016) 3 SCC 468, affirmed that Section 43 of the Limitation Act is applicable to arbitrations. It further clarified that the provisions of the 1996 Act, governing arbitrations, are similarly applicable to arbitrations initiated under the MSME Act, as if an agreement between the parties under Section 7(1) of the 1996 Act exists. Consequently, the Supreme Court definitively held that the provisions of the Limitation Act apply to arbitration proceedings initiated under Section 18 of the MSME Act.

Conclusion

The Micro, Small, and Medium Enterprises (MSME) Development Act is a crucial framework in India, supporting the growth of small businesses. It provides streamlined processes for registration, dispute resolution, and financial assistance to MSMEs. The Act’s focus on prompt settlement of delayed payments through dedicated councils reflects the government’s commitment to economic resilience. While the Act enjoys an overriding effect over arbitration and other laws, there is a continuous need for improvement in the dispute resolution process. The government’s efforts to create a more vibrant ecosystem for MSMEs are commendable, emphasizing a balance between regulatory compliance and ease of doing business for sustained growth.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Afshan Ahmad

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Reviewing the freedom of religion in the Indian constitution

Articles

Introduction

The Indian Constitution, which was ratified on January 26, 1950, is the basis of India’s democratic structure, providing citizens with a set of fundamental rights that serve as the foundation for individual liberties. The right to religious freedom is especially significant, as it demonstrates the country’s commitment to religious diversity and harmony. In this article, we will examine the Indian Constitution’s fundamental rights, with a particular emphasis on the right to religious freedom.

Fundamental Rights in the Indian Constitution

The framers of the Indian Constitution recognized the importance of maintaining individual liberties and hence established a list of fundamental rights. These rights are enshrined into Part III of the Constitution and serve as a check on arbitrary state action.

Right to Equality (Article 14-18)

The right to equality assures that all citizens are treated fairly and equally. It ensures equality before and equal protection of the laws. Article 15 forbids discrimination based on various reasons including religion. Through these articles a society can flourish, fostering inclusivity and fairness.

Right to Freedom (Article 19-22)

The right to freedom encompasses numerous privileges essential for individual persons growth. Article 19 provides freedoms of expression, assembly, association, mobility, residence, and the right to perform any profession or occupation. These rights allow persons to express their opinions and be a part of various activities but with reasonable limit.

Right against Exploitation (Article 23-24):

Articles 23 and 24 concern exploitation, including outlawing forced labour and child labour. These provisions are consistent with the broader principle of human dignity, safeguarding exploitation due to religious beliefs. The right to freedom of religion is essential to India’s secular identity.

Right to Freedom of Religion (Article 25-28)

Article 25 provides freedom of good conscience and the right to profess, practice, and propagate any religion. This right however, is not absolute and is subject to reasonable limitations in the interests of public order, morality and decency Articles 26–28 guarantee religious denominations’ rights, restrict the use of public funds for religious purposes, and regulate religious instruction in state-funded educational institutions

Doctrine of essential practises

The SC in the preview of religious practices established the concept of essential practices. This practice permits the state to interfere only in the case where the religious practice is determined to essential for the whole religion itself along with maintaining religion, the state also has authority to curb practice that are considered important and essential for a faith.

Application to the doctrine of essential practises

The fundamental idea upon which this doctrine stands upon is the essential practises followed through customs and age-old traditions. In certain cases, like:

Shirur Mutt Case (1954):

The Shirur Mutt case established the Doctrine of Essential Practices. The Supreme Court ruled that the state could regulate or prohibit commercial, financial, or secular activity associated with religion practices but not interfering with fundamental religious rituals. This case established the tone for future interpretations and implementations of the concept.

Sabarimala Temple Case (2018):

A more recent and much debated application of the doctrine occurred in the Sabarimala Temple case. The Supreme Court handled the complexity of religious rituals by overturning the ban on women of menstrual age entering the temple. The court noted that, while some practices may be necessary, they cannot violate constitutional norms, particularly those pertaining to gender equality.

Challenges and interpretations:

Despite these constitutional provisions, obstacles to religious freedom have emerged over time. Controversies over religious conversions, interfaith weddings, and challenges with religious practice have tested the delicate balance between individual rights and societal cohesion.

The judiciary, as stewards of the Constitution, has been essential in interpreting and preserving the right to religious freedom. Landmark rulings have underscored the scope and limitations of this freedom, emphasizing the significance of peaceful cohabitation among many religious faiths in a secular society.

Conclusion

Lastly, the fundamental rights provided by the Indian Constitution, particularly the right to religious freedom, form the basis for a democratic and varied society. India’s Constitution demonstrates its commitment to secularism, laying the groundwork for a varied and inclusive society. However, challenges persist, needing ongoing discussion between legal concepts, societal standards, and individual liberty. As India aspires for a more egalitarian and peaceful society, the protection and promotion of fundamental rights, notably religious freedom, is critical. The judiciary, civil society, and citizens as a whole must all take an active role in ensuring that the promise of a secular and democratic India is kept for future generations.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Namitha Ramesh

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