Lu Yong: Chinese Buyers Club

China is prosecuting Lu Yong for importing illegals drugs. But the person was doing to keep his right to live. A leukemia patient was caught for smuggling life-saving drugs illegally into China to keep himself and others alive. A drug when would cost 1000 yuan would cost 100 when bought from India pharma companies. The strict patent regime made the life difficult when it comes to life saving drugs. The medicines are out of reach for majority of the population. The story doesn't ends in China but the ordeal continue in Thailand, Brazil, African countries.

For multinational pharma companies, life saving medicine is just a business but for third world its a matter of life and death. In most cases, the customs department release the seized goods on humanity grounds. But still the strict patent regime continue the ordeal of patients who needed the life saving drugs. While developing countries mulls amending patents law, the MNC pharma companies lobby against the move. For them, Indian pharma companies are high value target to be taken out from the market to get upper hand. Since most buyers club depend on India for generic version of life saving drugs, MNCs started pestering Indian pharma industries with unwanted litigation.

It is good to amend patent law favoring the production of generic medicine. If not then one day medicine would turn to be high cost luxury product. Creating a cure for new disease is commendable and the researchers who spent whole life for the such innovation must be rewarded but with any other lives. The very purpose of invention get a wrong notion when it fails to benefit majority of the human population..

For multi national companies, the drug they produce must fetch profit along with cost incurred in such researches. But such approach when it comes to life saving drugs defeat the very purpose of citizen welfare. We are not still stuck at the old notion of warring state. The Concept is Gross National Happiness is taking precedence over the old Gross Development product. Such notion gains success when citizens are provided with adequate welfare schemes.

The law might stamp him as wrongdoer but the equity discharge him. Lu Yong, not only saved his life, tried to save many others. The charges were that he was trying to smuggle goods illegally. Had he done it for profit the state action is justifiable. When a law which does injustice then such law shall be considered as no law. Hope the the cause of Yu Long might turn the tide in the developing world.

Unnecessary Surgery due to Monetization of Indian Healthcare

Shocking news has been revealed by the media that  44% of the surgery done to the patients are unnecessary. 

"Everything in Indian healthcare is increasingly getting monetized. This is an indicator of that malaise." -Dr Sanjay Nagral, Editorial Board, the Indian Journal of Medical Ethics¹

When a person or his family face any health problem, the first thing done to the ailing person is self medication. Visiting a Hospital for a cure is frowned up when it comes to common ailments. The reason for such self-medication is due to the huge cost involved in the treatment. Our way of socialization of individuals in the society has added huge cost when it comes to healthcare system in India. Where Government is bound to provide health care for every individual in a country, healthcare system in India were delegated to private players. The end result was nothing but monetization of Indian Healthcare system.

Health of an individual is not seen as norms but profit by the present healthcare system. Most affected person is the insurance companies. For people who have mediclaim policies for undergoing any kind of surgical treatment, the insurance companies are going to pay the cost of such unnecessary surgery. Thus leading to undue pressure upon the economy. The report pointed that most of the government scheme which provide insurance cover to poor section of the society are worst hit by these unnecessary surgeries. The taxpayer money being pocketed in the form of insurance claims by the present healthcare institute. A pure drain of state economy.

The report focused prominently on the people who are affected with cardio-vascular diseases. One of dreaded disease in Indian Subcontinent. The faith in the Nobel profession make no person to question the diagnosis of the healthcare professionals. The faith leads to unnecessary surgeries. The second opinion of other healthcare professional is a little relief. The end result for privatizing healthcare system in India was evident in the media report.

While a state-run healthcare system avoid unnecessary surgery on patients, the doctor on private run healthcare recommend surgery for even simple ailments which is profit to those healthcare institutions. The approach of state-run healthcare institution were branded indifferent towards the patients. But the report busted all the myth cast upon the state run healthcare systems.

Source: 1. The report was extracted from the leading news agency, The Times of India.

Mistakes Happened in India

India, which is known for it unity in diversity have traveled long way in the History of this world. With unique multi-culture society, India is home to vast number of people. For a country which has faced numerous invasions and conquest, multiculturalism is not a surprise. This is end product achieved through blending various immigrants who were brought along with invaders. But we are proud of what we are now.

Socialization

"Human beings are socialized animals"

When a child is born in a society, it is yet to socialized by the social institutions. A Child with it instincts alone would grow up as an animal than as human. The process of socialization is to make the child follow the norms and promote the values which are in existent in the society. As the child grow up to an adult in the society, the level of socialization increases. The process of such socialization is done by three important social institutions:

• Educational Institutions
• Health Care Institutions
• Family

Failed States

To all people, who lived during the period of cold war, know the two great ideology for the life-time. One is lassiez-faire and another communism. While America created a new department to take down the propagation of communism in U.S.A, U.S.S.R aggressively propagated the ideology. The contention among the two great world powers is not the influence but the ideology that they believe in.

With U.S.S.R disintegration, propagators of capitalist rejoiced that the ideology in which they believed survived the odd times. The follow up  events showed that free markets are the only way to keep a sustainable society.  That was evident from the reforms carried out by many closed economy countries. But the communist state failed to note that closed economy is not the way achieve economic success. Neither authors or commentators of communist ideology favored closed economy to meet it ends while pursuing communism. 

The states which experimented with communism failed to take cue of the idea behind it. That was the real cause for the failure. Instead of working class owing the forces of production, state decided to own it on behalf of working class. The individual capitalism which was popular in the capitalist countries were transformed in to state capitalism. This is the root cause for the failure. The real communist idea was to make working class have control over the force of production. But in communist state, state took the place of the individual capitalist. So, the result was worse than expected. 

The result was that the states which pursued communism were seen as state which strike terror in the heart of citizens. An insecure sense in the society. The forfeiture of assets owned by individuals was the worst part. In no part of the communism, it was told to forfeit the rich. The anger against the capitalist class helped to built those communist state. That was one among the many mistakes causing downfall of these states. Communism is not about usurpation of capitalists.

The Communism is not a mere failed ideology. It still has potential of its own. Still workers can own force of production. The great example is cooperatives where workers or craftsmen who are in need of capital can pool their resources to create a great production force. The profit are shared among the members. It is not mandatory to establish them only in the communist state. Any society can develop cooperatives. When workers or group of individuals feel they can't meet their ends with the present way, they can peacefully form such organisation among themselves. This don't need any drastic change or weapons to change their lives or others. Only the will and good organisation skills were needed. This is the real communism and not changing into a state capitalism.

Even in strict capitalist states, communism is followed in disguise. One great pick would be partnerships. Where people of common interest work together to achieve their goals. Their might rise a question, how it benefit the working class! Communism is not only about working class, it about collective work whoever it may be. In strict capitalism individuality is the norm while collectivism is for communism.  The target of communism turned to be working class as these people had no control over the forces of production. Even in partnership, each individuals don't have means to have control over the forces of production. Hence, they decide to own collectively the production force. Either way, it appears same but for the names involved.  

Evolution of Law of the Land

The history of any nation would always start with the stone age where people, yet to be socialized lived. The evolved to be nomads seeking a livelihood from place to place. Further, they domesticated animals and reared them for food. Later, the nomads started settling at various places, adjacent to rivers, in the world forming a group of settlers. 

Contemporary Convictions

Good day people. We would have heard about convictions of offenders involved in crime through our mass-medias. The convicts are proved guilty based upon a code which is law of the land. While the code is of substantive nature which provides various provision for punishments against a specified act that is declared as wrong in that society.

While it may be seen as naive to question the code upon which judiciary functions, but soon it may emerge contingent to question the code as change in the society might make the present code sterile and dysfunctional. The code is the primary source of remedy against a wrong committed by the convict. Hence, the question is what constitute a wrong in a society? All right, the time has arrived to correct the deficiency in the contemporary justice system. All we do is just punish the person who has committed the wrong. Does it have end in itself? A deep thought answer is no! Just punishing or terminating the offenders out of the society is just a temporary solution. To sustain a society, punishments are not alone sufficient pillar to build a community.

The other view of the justice must be addressed at this juncture. The cause of such an act deemed to be wrong to be found out. What may appear to be wrong to us might appear correct from perspective of the others. The ideology on which the society is built provide the supportive clause for the act declared to be wrong. Precisely , the person who acted against the ideology of the society is deemed to be wrongdoer. Indeed, for a person who is deviant from the social norms of the community should be treated with great care. Rather than punishments, a correctional facility is the way to bring such person back into the fold of the ideology of the community. But the present day Judicial system in most nation fail to address the need of correction. They act only as an institution of fear and keep the delinquent undercover.

The contemporary system promoted the value that unless you get caught nothing done is wrong. The socialization which evolved for many centuries failed to address bringing back the delinquent person who is a wrongdoer for the community in which he lives, in line with the ideals of the community. On the other hand, it developed a stigma around the delinquents which further antagonize them.

In order to provide stable community, a balance must be struck between punishments and corrections of delinquents. It said easier than getting it done. It is slow and steady process and must be build with great care.

Protection of Child Under Domestic Violence

No violence against children is justifiable - UNICEF

In accordance with the guidelines laid down by the UN organisation for protection of Children against abuse and domestic violence. The Domestic Violence Act, 2005, in compliance with such provisions of UN has placed a safeguard against the abuse of children of the victims under Domestic Violence act. The Act 43 of 2005 not only protect the woman from domestic violence but also protect the dependents of victims, especially children.

Object of Custody Order

Section 21 of Act 43 of 2005 protect the children of the victims against the Domestic Violence perpetuated against them. It entrust the temporary custody of the children of the mother who is victim of Domestic Violence. Any wrong committed against mother may affect the children directly or indirectly. Hence, the object is to protect the children from abuse to which the child may be subjected, directly or indirectly.

Reason Behind such Order

A natural presumption when it comes to the care of children is that mother would take care of her children than any other person. Hence, under section 21 of the Domestic Violence Act, secure the temporary custody of the children to the affected woman (mother of the child) while the application of the aggrieved person is being considered by the Magistrate.
If the situation deems fit an arrangement shall be made for the respondents to visit the children. Even then, if the Magistrate thinks fit that such visit by the perpetrators of Domestic Violence, is harmful or not in the interest of children, then the Magistrate shall refuse such visits by the respondents.

For any corrections or mistakes in the blog contact me.

Disclaimer: This blog is for educational purposes only. All information provided here are only informative. The authors takes no liability for any injury to the readers.

Monetary Relief Under Domestic Violence Act, 2005

Monetary relief, which is also called as compensation, is an order passed by the magistrate in favor of the victim under Domestic Violence, for any loss or expenses incurred by the victims as a result of Domestic Violence. The victims would include the children of the woman who suffer Domestic Violence.

Remedies available to Victims

The Magistrate, to whom the application was made, may pass an order after providing an opportunity to the person against whom such reliefs were sought by the applicant/victim. The order may contain the following but the order so passed is not limited to following. The Magistrate may pass compensation to any other acts which has resulted either directly or indirectly towards violence against the victims.

The following are the remedies available under Monetary relief which are included in the Domestic Violence Act:

•  For any loss in earnings to the victims which was caused by the persons accused of Domestic Violence.
• To compensate for the expenses incurred by the victims while under going any medical treatment.
• To compensate for the loss resulted due to the deprivation of the property from the victims. Such property includes the properties held jointly or stridhan.
• For maintenance of the affected woman and her children. This relief may include or in addition to the sec 125 of Cr.P.C.

Effect of Non-Compliance of Order

If the person against whom the above mentioned order was passed by the Magistrate and such person fails to comply the order, then the Magistrate shall issue directions as follows:

• To direct the employer/any debtor of the person against whom a monetary order was passed, to pay the money in favor of victim or deposit in the court. In case of Employer, the Magistrate shall order for deduction of certain amount periodically from the salary of the employee against whom a monetary relief order was obtained, until the amount mentioned in the order was paid to the victim.

Calculation of Relief amount

The Act 43 of 2005 has not placed any yardstick to measure the amount of compensation payable to the victims. But places a guideline in motion under Section 20(3) of Domestic Violence Act, 2005.
It states that the monetary relief shall be to the extend so that aggrieved person shall meet her standard of living to which she is accustomed. The amount should be such that it will be able to meet the needs of the victim. The standard of living of the victim to which she is accustomed should prevail as it is.

For any corrections or mistakes in the blog contact me.

Disclaimer: This blog is for educational purposes only. All information provided here are only informative. The authors takes no liability for any injury to the readers.

Residence Order

What is a Residence Order?

The basic needs of human being are food, clothing and shelter. This residence order provides shelter for the woman who suffer Domestic violence. This one among the orders that may be passed by the Magistrate under whom the adjudication of the application falls.

What Order shall be passed?

The Magistrate may pass any order on being satisfied that prima facie domestic violence occurred. The order may contain the following:

•  To restraint the person who is alleged to have committed domestic violence (respondents) from dispossessing or disturb the possession from the house where she is residing.
• To direct the respondents to be evicted out of the common household. But this provision shall not apply to persons who are women.
• To restraint the respondents or their relatives from entering the portion of the household where the affected person and dependents resides.
• To restraint the respondents from alienating or disposing the shared common household
• To direct the respondent to secure an alternate accommodation for the affected person.
• The respondent not to stop paying any rent and other payments related to the common household where the applicant and respondents reside.

Limitation of Residence Order

The residence order shall not lie against in-laws of the affected woman. Even the third and fourth condition mentioned above is applicable only when husband is a member of joint family.

Other Orders along with Residence Order

The Magistrate may as he thinks fit depending on the case shall direct the respondents to execute a bond that they shall not commit any act of Domestic Violence in the future. This is to protect the interest of the affected person. Persons against whom an application was made may threaten or evict the applicant from the house. Hence, if the situation needs, the Magistrate may direct the respondents to execute a bond abstaining from Domestic Violence.

Implications of Residence Order

Under section 19 of the Act 43 of 2005, applicant and the respondents can reside under the same roof even though, the application remains pending before the court. The most common social tendency, particularly in India, is to send the girl out of the matrimonial house the most she tries to take a legal recourse against husband, in-laws or relatives. The most weaker section of the society are women and their children. Hence, the section 19 of the Act of 2005 was well crafted to satisfy the social appetite and secures the vulnerable group of the society. 

This section has distinguished significance when the affected woman and their dependent children lacks support from both the matrimonial and parental house. This particular section provide protection and have perpetual impact upon the dependent children. Hence, prevent psychological and emotional distress and prevent the children from turning into a future deviant in society.

For women who completely depend on their husband or relatives for the financial needs, this is a life-saver.

For any corrections or mistakes in the blog contact me.

Disclaimer: This blog is for educational purposes only. All information provided here are only informative. The authors takes no liability for any injury to the readers.

Protection Order

What is a Protection Order?

Under the Domestic Violence Act, 2005, the Magistrate was conferred with vast powers to issue any order as he/she deems fit for the benefit of the woman who suffer from act of Domestic Violence.

When the Protection Order shall be passed?

The Magistrate shall pass a protection order in favor of the affected woman which includes the dependents of the affected woman especially children.

The Magistrate may follow the Principles of Natural Justice prior to the disposal of the application which prays for relief against the person committing an act of Domestic violence. The Magistrate shall provide an opportunity to the respondent or the person who alleged to have committed the act of Domestic Violence to put a defense statement against the application.

If the Magistrate is satisfied that prima facie case is made up against the respondents, the Magistrate shall pass the Protection Order in favor of aggrieved person.

What shall the Order contain?

The Magistrate may pass a Protection Order which shall prohibit the following act by the respondents.

• From committing any act of domestic violence.
• From aiding or abetting a act of Domestic Violence
• From entering the work place of the applicant, in case of woman, and schools or any other place, in case of children.
• communicating to the applicant/ aggrieved person in any form.
• To alienate any assets, bank lockers or accounts held either singly by the respondent or jointly by the applicant and the respondent
• To alienate applicant stridhan or any other property which being held jointly or separately by the parties.
• To cause any act which constitute Domestic Violence against the aggrieved person's dependents or other relatives or any person who provide assistance to women who was subjected to Domestic Violence. 
• Any act which magistrate may thinks fit that it ensure the protection of the aggrieved woman and the dependents.

Exception:

In case of properties held by the parties, such properties shall be alienated/sold with the sanction of the Magistrate under whom the application is pending for disposal.

For any corrections or mistakes in the blog contact me.

Disclaimer: This blog is for educational purposes only. All information provided here are only informative. The authors takes no liability for any injury to the readers.

Service Providers under Domestic Violence Act

In the previous post, the procedure involved in the adjudication of Domestic Violence case before the Magistrate was stated.

Now, it's time to address the various service providers who can involve themselves voluntarily in the aid of the affected woman.

Who are all service providers?

Any voluntary association shall be a service providers. And such voluntary organisation must be either registered under Societies Registration Act, 1860 or it must be a company registered under Companies Act or in accordance with any other law for time being in force.

Every voluntary organisation must register themselves with appropriate State Government as a service provider.

Difference between Service Providers and Protection Officer

One of the primary distinguishable difference between the both are the mode of appointment. While a Protection Officer is appointed by the concerned state government for each district, the service providers on the other hand, is a voluntary association, out of it's own interest, who provide service to the affected woman under domestic violence. 

Even though service provider being a voluntary organisation, it's at par with Protection Officer on some part.

Service rendered by the authorized Service Providers

• The primary object is to protect the rights and interest of the woman by lawful means.
• To provide include legal aid, medical, financial or other assistance to a woman who suffer from Domestic Violence or threats.
• Each service provider shall have the power to record the Domestic Incident Report and forward the copies to the Magistrate and the Protection Officer.
• To perform medical examination of the affected woman and send a copy of Medical Report to the Magistrate, the Protection Officer and the Police Station.
• To provide shelter to the aggrieved woman if she request so and forward a Report of Lodging to the Police Station.

Immunity to Service Provides

As the voluntary association which come forward to help the aggrieved woman, it shall be given such protection under the statute in order to avoid unnecessary pressure. Normally, such association are feel the heat of the respondents involved in the dispute. So to insulate such association from the warmth section  10(3) provide protection to the service providers.

The immunity not only extends to voluntary association but also to the members of that organisation. The immunity, thus, provided extend only to the acts done in good faith, in exercise of powers, functions under the Domestic Violence Act.

For any corrections or mistakes in the blog contact me.

Disclaimer: This blog is for educational purposes only. All information provided here are only informative. The authors takes no liability for any injury to the readers.

PROCEDURE FOR DOMESTIC VIOLENCE

Remedies Against Domestic Violence

Background:

In accordance with various International accords such as Vienna Accord, 1994, Beijing Declaration, Platform for Action, 1995, etc., The Domestic Violence Act, 2005 was passed by legislature to protect woman from Domestic Violence. But this not only concerns with the aggrieved woman, also cares about the child of such aggrieved person.

Need of Domestic Violence:

Even though, The Indian Penal Code, 1860, was amended to include section 498A, it was not suffice to fulfill the social demands. The scope of this section was limited only to the husband and his family. There exist no chance for civil remedy if violence was committed by the relationship  of aggrieved person's family.
Therefore, makeup the lacuna in law the Domestic Violence Act, 2005 was passed. Not only husband, but also the relationship of the woman who are members of joint family are included in this act. Hence, the aggrieved person shall raise a plea against any of her relationships. This would mean that even daughters, mothers, sisters are eligible to make an application with the magistrate.

What are Domestic Violence?

Under section 3 of the Domestic Violence Act, 2005, any act or conduct or commission or omission of any act against a women is domestic violence if it satisfy the following conditions

(I) harms or injures or endangers the aggrieved person or tends to do so. It includes physical abuse, sexual abuse, emotional abuse and economic abuse.

(II) To harass, harm, injure to coerce her or any other person related to the aggrieved person

(III) To threaten the aggrieved person to do any of the act mentioned in (I) and (II).

(IV) Injures or causes harm, physical or mental to the aggrieved person.

PROCEDURES FOR DOMESTIC VIOLENCE:

The first and foremost question among anybody to raise a dispute is under which authority the jurisdiction falls or to whom the application to be submitted? Unlike other family dispute, it was not placed under the civil court jurisdiction. The Magistrate is the authority allowed to entertain application regarding domestic violence.

Who to file an application?

Following person are eligible to present an application before the Hon'ble Magistrate. They are
I. An aggrieved person
II. A Protection Officer
III. Any other person on behalf of the aggrieved person

Powers of the magistrate:

Notice:

A Notice shall be issued by a Magistrate to Protection officer, who shall server it upon the respondents and on any other person as directed by the magistrate. The proof of service by the protection officer is a conclusive proof unless contrary is proved. The Notice shall contain the date of hearing of the application under the above said Magistrate.

Counselling:

The Magistrate may call for counselling either singly or jointly for the aggrieved person or respondents. The counseling shall be done by the service providers. The next hearing date shall not exceed two months time.

Welfare expert:

The Magistrate may request a person who is engaged in promoting family welfare for assisting him in discharging his functions. The person so appointed shall preferably be woman.

In Camera Proceedings:

If the Magistrate thinks fit that circumstances of the case warrant in-camera proceedings and parties to the proceedings agree then the Magistrate shall conduct the proceedings in camera.

PROTECTION TO WOMAN DURING PROCEEDINGS:

As per the provision of section 17, the aggrieved woman shall vest with the right to stay in the common household in which she was residing along with the perpetrators of domestic violence. This right is irrespective of title or beneficial interest in the property.
Under no circumstances, the aggrieved woman shall not be evicted or excluded from the enjoyment of shared household or any part of it. Hence, the woman shall have the protection of shelter even if enmity prevail between the aggrieved person and the perpetrators of the crime.
But this claim shall prevail only against husband. Not against any other person who are involved in the act of domestic violence. The “Shared Household” would mean house where husband resides. Hence, it may be one of the followings:

• House belonging to husband
• rented by the husband
• or house which belongs to joint family of which husband is a member

Know about Service Providers under Domestic Violence