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By DONAL THORNTON
IrishCentral.com Staff Writer
Published Wednesday, March 31, 2010, 7:40 AM
Over 100 failed asylum seekers are taking to the streets of Dublin to protest against deportation orders.
The asylum seekers are set to protest outside government buildings and are demanding to stay in Ireland with their Irish born children.
Irish group Residents Against Racism is organizing the protest. The group highlights the plight and deportation of parents of Irish born children.
Many of the protesters have been handed their deportation notices and can be arrested and deported at any time.
Residents Against Racism spoke woman Rosanna Flynn said, “In time of severe cutbacks, the Government has found thousands of euro to fill two deportation flights already this month.”
“Both flights included parents of Irish citizens, spouses of Irish citizens and people who had not exhausted the legal process of appealing against deportation.”
Flynn was also baffled by the fact that some of those deported were sent back to war torn states such Afghanistan and Iraq.
Alfred, a Nigerian protester arrived in Ireland four years ago to join his wife and three children. In 2004 a referendum overturned the automatic right to citizenship for children born in Ireland.
“I have now been served with a deportation order and could be sent back to Nigeria at any time,” said Alfred.
Alfred’s children can stay in Ireland with their mother but he may be deported as he joined his family after the constitutional change to Irish citizenship.

Copyright © 2009 IrishCentral LLC

By REUTERS, April 1, 2010
A federal judge in Manhattan threw out a class-action lawsuit accusing the ratings agencies, Moody’s Investors Service and Standard & Poor’s, of defrauding investors about the safety of $63.4 billion of mortgage debt.
Judge Jed Rakoff of Federal District Court also dismissed some claims against the Bank of America Corporation, JPMorgan Chase & Company and the ABN Amro unit of Royal Bank of Scotland Group. And he dismissed the case against Credit-Based Asset Servicing & Securitization, or C-Bass, which packaged debt underwritten by the banks.
Judge Rakoff, in a two-page order late Wednesday, said he would spell out his reasoning in a later opinion.
“It is going to be a major ruling by a prominent jurist about one of the largest securities cases coming out of the subprime crisis,” said Carla Walworth, a partner at Paul, Hastings, Janofsky & Walker in New York who represented C-Bass.
Plaintiffs, led by the Public Employees’ Retirement System of Mississippi, accused rating agencies and banks of misleading them about the safety of 84 mostly investment-grade offerings of residential mortgage-backed securities.
The plaintiffs said the securities they bought were in fact “not of the ‘best quality,’ or even ‘medium credit quality.’ ” They said that, after being downgraded to junk status, the securities were worth far less than they paid.
Many underlying loans were made by mortgage lenders that later became distressed or defunct, including three of the largest: the Countrywide Financial Corporation, the American Home Mortgage Investment Corporation, and IndyMac Bancorp.
A spokesman for Moody’s, Michael Adler, and one for S.&P., Frank Briamonte, said their agencies were pleased with the ruling. Other spokesmen — Bill Halldin at Bank of America, Brian Marchiony at JPMorgan and Michael Geller at RBS — declined to comment.
David Stickney, a lawyer representing the Mississippi fund, did not immediately return a call.
Another judge in Manhattan federal court, Lewis A. Kaplan, dismissed claims in January against Moody’s and S.&P. over nearly $100 billion of mortgage-backed debt sold by Lehman Brothers Holdings.
A third judge in that court, Shira A. Scheindlin, is considering a separate lawsuit by Abu Dhabi Commercial Bank and King County in Washington State over whether Moody’s and S.&.P deserve free speech protection for their ratings.

Americans, it seems, don’t have a lot of love for the body of federal lawmakers we like to call Congress. According to a recent Washington Post poll, only 24 percent of the respondents said they approved of the job Congress was doing. Republicans, Democrats, Independents — it just doesn’t matter. People don’t like Congress. WSJ.com
So what to do? The electorate can vote everyone out — as seems the impulse these days — but you’re still left with, well, Congress. Filibusters, back-room deals, hyper-partisanship, the whole deal.
One potential solution, some think, lies in Article V of the Constitution, which permits states to call a convention for the purpose of proposing constitutional amendments. Any proposed amendment then would have to be ratified by both houses of 38 state legislatures (three-fourths of the states). In order to launch a constitutional convention, requests by 34 states are required (two-thirds of the states).
Writing for the WSJ’s opinion page on Thursday, Virginia state legislator James LeMunyon thinks a constitutional convention is the way to go. He cites evidence that interest in such a path is “growing at the state level.” LeMunyon writes:
A petition for such a convention passed the Florida Senate last month, to propose amendments requiring a balanced budget and to restrain the growth of the national government. If approved by the House, Florida would be the 20th state with an active call to do so. In the Virginia House of Delegates, I introduced a resolution (H.J. 183) calling for a constitutional convention to restrain the national government as well.
Over at the Washington Post, Ezra Klein, well, pretty much rips the idea. For starters, Klein thinks that putting more hands in the states would only serve to “further bias[] outcomes toward state preferences.” For example: Klein seems to advocate getting rid of the Senate, calling it an “a disproportionate and gridlock-inducing body.” But that outcome could never happen under a convention, Klein argues, because chucking the Senate would likely weaken states’ power.
Klein also strikes a “be careful what you wish for” note, saying that most constitutional amendments that get proposed are ill considered and would lead to counterproductive results. Writes Klein:
LeMunyon proposes a balanced budget amendment, which would have a catastrophic economic impact, especially in recessions. Imagine if TARP hadn’t passed, even more major banks had failed, and the federal government was not able to do any fiscal stimulus to clean up the mess, and you start to get just how irresponsible a balanced budget amendment would be. But it sure was popular the last time it was seriously debated, and the support of 38 state legislatures, most of whom are operating under balanced budget amendments of their own, seems achievable.
LBers, any thoughts? Should we use the constitutional convention strategy to circumvent Congress’ ineffectiveness?
While we’re at it, should we get rid of the Senate?
Copyright 2008 Dow Jones & Company, Inc.

The Foreign Corrupt Practices Act must be much on the minds of in-house lawyers nationwide these days, what with the DOJ’s announcement that it intends to beef up its enforcement unit “substantially.” At Marginal Revolution, economist Tyler Cowen suggests that the FCPA may be standing in the way of U.S. participation in rebuilding efforts in Haiti.
Cowen says that, “You can’t do business in Haiti without paying bribes,” and recent events would seem to lend some credence to that opinion. Cowen quotes from a Wall Street Journal opinion piece (of which I, a humble non-subscriber, can show you only this much) where an unnamed American entrepreneur operating in the Caribbean stated that he simply “did not bother with” Haiti — which he called “strictly pay to play” — because of the FCPA.
The devastating earthquake clearly presents an opportunity of sorts for many American businesses. And some seem to have wasted no time getting down to Haiti to hawk their wares. It should not be necessary to suspend enforcement of an anti-corruption law to enable U.S. companies to participate, but, realistically speaking, is it justified in this case to look the other way for a time?
The Foreign Corrupt Practices Act must be much on the minds of in-house lawyers nationwide these days, what with the DOJ’s announcement that it intends to beef up its enforcement unit “substantially.” At Marginal Revolution, economist Tyler Cowen suggests that the FCPA may be standing in the way of U.S. participation in rebuilding efforts in Haiti.
Cowen says that, “You can’t do business in Haiti without paying bribes,” and recent events would seem to lend some credence to that opinion. Cowen quotes from a Wall Street Journal opinion piece (of which I, a humble non-subscriber, can show you only this much) where an unnamed American entrepreneur operating in the Caribbean stated that he simply “did not bother with” Haiti — which he called “strictly pay to play” — because of the FCPA.
The devastating earthquake clearly presents an opportunity of sorts for many American businesses. And some seem to have wasted no time getting down to Haiti to hawk their wares. It should not be necessary to suspend enforcement of an anti-corruption law to enable U.S. companies to participate, but, realistically speaking, is it justified in this case to look the other way for a time?

The Appignani Humanist Legal Center, legal arm of the American Humanist Association, filed a friend-of-the-court brief with the Supreme Court on Monday, arguing that the Court should affirm a decision made by a federal appeals court that the University of California Hastings College of the Law acted appropriately when the they denied recognition to a Christian-only student group.
The lawsuit involves a chapter of the Christian Legal Society (CLS), who was barred from receiving school funds, priority access to facilities and use of Hastings’ logo because they did not permit non-orthodox Christians and gays to become voting members or leaders. Hastings had denied a request from the group that they be exempt from the school’s nondiscrimination policy, which prohibited student groups from discriminating on the basis of “race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation” as a condition for receiving access to school resources. The AHLC’s brief argues that Hastings and other publicly-run institutions or entities can establish a conditional limited public forum for free speech, as long as the conditions for using the forum are neutral and generally applied.
“A University has every right to prohibit discrimination on the basis of religion or sexual orientation among student groups that receive school resources,” said Bob Ritter, AHLC attorney and counsel of record for the brief. “Public schools have an interest in making sure all students feel welcome, whether they are religious, non-religious, straight or gay. And ensuring that their resources don’t go to groups that violate policies of nondiscrimination is an appropriate measure to keep universities inclusive.”

For HumanistNetworkNews.org
March 17, 2010
The American Humanist Association last week decried a 9th Circuit Court of Appeals ruling that the governmental use of the phrase “under God” in the Pledge of Allegiance does not violate the U.S. Constitution. In a 2-1 decision, the court stated that the phrase does not form an unacceptable government endorsement of religion in violation of the Establishment Clause of the First Amendment. Thus, they found a California statute permitting teachers to lead students in recitation of the Pledge does not violate the Establishment Clause.
“I’m disappointed with the court’s ruling today,” said Roy Speckhardt, executive director of the American Humanist Association. “What unites us should be a civic bond, not a religious tenet. Government should respect Americans from all walks of life and backgrounds, yet nontheists are still in many ways treated like second-class citizens in this country.”
The case was originally brought by Michael Newdow, a lawyer with the Appignani Humanist Legal Center, on behalf of his daughter against the Elk Grove Unified School District in 2000. Newdow argued that school children should not be required to recite the Pledge. The 9th U.S. Circuit Court originally ruled in his favor in 2002; however, the Bush administration appealed, arguing that the pledge is a patriotic exercise, not government-backed religion. The U.S. Supreme Court then overturned the ruling in 2004 on the technical issue of standing. Addressing the issue of standing, Newdow sued a second time.
The AHA isn’t the only organization who has come out against the phrase in the Pledge. American Atheists California held a demonstration today at the San Francisco 9th Circuit Court of Appeals building to call on Congress to repeal the act that added the words “under God” to the Pledge of Allegiance.
“As long as these two words remain, the Pledge will continue to be a wedge in American unity, dividing us along religious lines. Congress needs to take the lead in restoring the Pledge of Allegiance to its pre-Cold War text and once again make the United States ‘one nation indivisible,’” said Dave Kong, American Atheists Director of State Operations.

Justice Aftab Alam of Indian Supreme Court in the matter of M/s Dolphin Drilling Ltd vs Oil And Natural Gas Corporation has observed that it is unfortunate that arbitration in India has proved to be a highly expensive and time consuming means for resolution of disputes.

by Professor Daniel Sandler of The University of Western Ontario, 3/16/2010
The US formal venture capital industry is large by any standard. However, it is a mistake to generalize about a “US” venture capital industry because relatively little of the country, in terms of geographic area, benefits from that industry. As a consequence of the limited geographic scope of venture investing and its important impact on building an entrepreneurial culture, particularly in the high tech sector, many US states have adopted programs to increase venture capital investment as a means of creating quality jobs, new wealth, and fostering economic development in the state.
The primary programs through which state governments can facilitate formal venture capital investment are:
• government funded and managed venture capital funds (VCFs);
• government investment in private VCFs;
• tax credits for private investment in VCFs.
This article critiques a particular VCF program of the third variety that has gained some notoriety: certified capital company (CAPCO) programs, which target venture capital investment from insurance companies with a 100 percent premium tax credit for the money they invest in CAPCOs. However, CAPCO programs are, in my view, a waste of limited state resources and, in fact, may do more harm than good in developing a regional venture capital industry.
Louisiana was the first state to adopt a CAPCO program, in 1983. Other states were slow to follow suit, although since 1997 eight other states have introduced similar legislation and many other states (as well as Washington, DC) have been heavily lobbied by a relatively concentrated CAPCO industry. Four major CAPCO groups—Advantage Capital, Enhanced Capital, Stonehenge Capital and Newtek—accounted for approximately 80 percent of the $1.65 billion of the total state tax credits granted between 1986 and 2001 across all US states.[1] These CAPCO groups spend a significant amount of time and money lobbying to maintain existing CAPCO programs and to establish new ones.
All CAPCO programs follow a similar pattern, illustrated in the following example. A CAPCO’s promoters invest $500,000 to establish the CAPCO (although, in Louisiana, only $200,000 is required); the CAPCO issues $25 million in secured notes to insurance companies. These notes generate $25 million in premium tax credits to the insurance companies over a 10-year period.[2] These premium tax credits, together with a certain amount of the capital raised by the CAPCO—approximately $10 million in this example—cover the principal and interest obligations of the CAPCO to the insurance companies under the secured notes. A further $1 million covers financing and related costs, leaving approximately $14 million to be invested in qualified small businesses by the CAPCO owners.
All CAPCO programs have “pacing requirements” that the CAPCO must meet. The pacing requirements refer to the time periods in which a specified percentage of the CAPCO’s certified capital (the capital benefiting from premium tax credits) must be invested in qualified small business investments in the state; these pacing requirements vary from state to state, although in no case do they require more than 50 percent of the certified capital to be invested in qualified businesses. However, all states require a CAPCO to invest 100 percent of its certified capital (i.e., $25 million in this example) in qualified small businesses in order to voluntarily decertify and make distributions to the CAPCO promoters. Assuming that the CAPCO invests the entire $14 million available in qualified investments, the CAPCO must liquidate some of these investments and reinvest at least $11 million in other qualified investments in order to reach the investment threshold necessary for liquidating distributions. The CAPCO can lose a substantial amount of the $14 million and still be highly lucrative to the promoters in two respects. First, the management fees permitted by legislation—generally 2½ percent of total certified capital—are based on both actively managed venture capital and the capital set aside in US Treasury bonds or other low-risk investments to cover the payments to the insurance company investors. So, in the above example, management fees can be $625,000 per annum (i.e., 2½ percent of $25 million) even though only $14 million is actively invested in qualified venture capital-type investments. Second, the entire venture portfolio of the CAPCO essentially belongs to the equity owners. Even if the CAPCO manager is successful only in maintaining the $14 million originally invested—in fact, even if it loses a significant portion of this investment—the entire amount belongs to the CAPCO promoters.
CAPCO programs have been costly to the states that have introduced them: to date, the aggregate cost to all nine states with CAPCO programs is well over $1.5 billion. Whether this cost is justified or not depends on the benefits to the state of the program. Only Louisiana’s CAPCO program is old enough to warrant a cost-benefit analysis and the only analysis of that program of which I am aware—a study commissioned by the Louisiana Department of Economic Development in 1999[3]—suggests a positive cost-benefit analysis only if highly favourable assumptions (in my view, unrealistic assumptions) are made about the success of CAPCO investments.[4]
If the costs of the CAPCO program exceed the benefits, as is likely the case, then the program makes sense only as a limited-term catalyst to create a self-sustaining venture capital industry; however, the CAPCO program is fatally flawed in this respect. The investors in the program do not put money at risk in venture capital investments. They are secured creditors making a good rate of return on their investment. In the absence of the tax credits and the ability of the CAPCO to fully guarantee their loans, the insurance companies simply would not make similar investments.
Since the CAPCO program will not prompt insurance companies to make true venture capital investments, it can create a self-sustaining venture capital industry only if the CAPCOs (or their investments) attract other venture capitalists, and sources of venture capital, to the state. That may be possible if the investments made by CAPCOs attract a concentrated pool of motivated entrepreneurs in growth businesses to the state who in turn attract private venture capitalists. However, that is unlikely to be the case. The relative ease by which CAPCOs can raise money coupled with the pacing requirements imposed on the CAPCO, has two potential consequences. First, CAPCOs may be willing to invest in portfolio firms that private VCFs have, perhaps for good reason, rejected. Second, CAPCOs may tend to overvalue potential business investments compared to their private VCF counterparts. Expressed another way, if a desirable portfolio business is seeking a particular amount of money, a CAPCO would be willing to take a smaller equity participation than a private VCF for the same cost. In other words, the cost of capital to the small business has been reduced.[5]
The CAPCO tax credit may reduce the cost of capital to SMEs in the same way that tax-free municipal bonds reduce the borrowing costs of US cities. In the municipal bond context, reduced borrowing costs are good for the city because the city is seeking only money, not opinions from lenders on how to spend the money it raises. However, in the venture capital context, portfolio firms, unlike cities, require more than money. They require assistance in developing a strong management team to assist in product development and marketing and in general business administration. Private VCFs tend to be active participants in the development of their portfolio firms. CAPCOs, on the other hand, do not have the same motivation to add value to their portfolio firms.
CAPCOs can be beneficial if they simply increase the pool of venture capital available in the state. However, if through their investment behaviour, they displace private venture capitalists, then they may in fact be detrimental not only to the venture capital industry, but also to the economic development of growth-oriented small businesses and therefore to overall economic growth. I am not aware of any CAPCO study in which this issue has been addressed. However, a study of another type of government-sponsored venture capital investment vehicle used in Canada—labour-sponsored venture capital corporations (LSVCCs)—suggests that LSVCCs do crowd out private VCFs rather than enhance the amount of venture capital available.[6]
CAPCOs are structured differently from LSVCCs, although they share certain key features that likely produce the same crowding out effect. In particular, both programs require up-front investment by qualified investors in order to obtain a tax credit and then impose pacing requirements on the CAPCO or LSVCC. The significant up-front incentive reduces the pressure on the fund manager to invest the capital in qualified investments while the pacing requirements with accompanying penalties may lead to last-minute, hasty investment decisions. Under neither program is the fund manager subject to appropriate pressure from the fund’s investors to undertake the degree of due diligence or the extent of monitoring expected in private sector VCFs. In both cases, in fact, there is a distinct possibility that CAPCOs or LSVCCs crowd out private sector VCFs. The incentives offered under both programs are too rich and neither program is designed to promote the operation of VCFs in the same manner as in the private sector. In my view, these programs are a recipe for disaster rather than a catalyst for growth.
________________________________________
Professor Daniel Sandler Faculty of Law, The University of Western Ontario, London, Canada; Senior Research Fellow of the Taxation Law and Policy Research Institute, Monash University, Melbourne, Australia.
Professor Sandler joined the Faculty of Law in 1995 after spending three years as a member of the Faculty of Law, University of Cambridge and a Research Fellow for the Institute for Fiscal Studies and the Chartered Institute of Taxation, both in London, England. Since 1997, he has been a Senior Research Fellow at the Taxation Law and Policy Research Institute, Monash University, Melbourne, Australia. In 1999-2000, Professor Sandler was a Fulbright fellow at the Faculty of Law, UC Berkeley. He has served as a consultant to the Organisation for Economic Co-operation and Development (OECD), the Auditor-General of Canada, the Technical Committee on Business Taxation, and the Louisiana Department of Economic Development. Professor Sandler has written several books including, most recently, Venture Capital and Tax Incentives: A Comparative Study of Canada and the United States. He is the co-editor of Materials on Canadian Income Tax (13th ed.), which is used in law schools across Canada. He has written numerous articles in national and international journals and spoken at conferences worldwide on various aspects of tax law and policy.
[1] Joe Guy Collier, “How investors could get $100 million from S.C. Critics say plan to finance high-tech firms puts all the risk on taxpayers,” The State, April 28, 2002 (available online from the NASVF Web site, http://www.nasvf.org/).
[2] In most states, the tax credit is provided at a rate of 10 percent per year for ten years. In two states (Louisiana and Alabama), the credit is provided at the rate of 12½ percent per year, beginning in the third year after the insurance company invests in the CAPCO.
[3] Postlethwaite & Netterville, CAPCO Study, prepared for Louisiana Department of Economic Development (Baton Rouge: Louisiana Department of Economic Development, December 31, 1999) (available online from the LDED Web site: http://www.lded.state.la.us/).
[4] Although the study describes various ways to differentiate portfolio businesses (e.g., industry type, gross receipts, payroll size, profitability) and the type of financing provided by CAPCOs (early development, expanding markets, buy-outs, refinancing and other), the study used only gross receipts and industry-type as the bases for estimating the economic benefit of the program. Estimates of gross receipts were based on three different growth scenarios: the first was based on the average growth of actual gross receipts over the previous five years of all companies that received CAPCO financing, being 29.1 percent; the second used was 15 percent, based on start-up companies having an above-average growth potential; and the third used a more conservative 10 percent. Even in the most favourable conditions, the study can be criticized for the simplicity in calculating the benefits of the program. According to the study (at 53):
In the end for the company to succeed it must have a positive net income, but gross receipts are an important measure of the impact of the company on the local economy because this determines how many persons will be required to work for it, how many materials will be purchased from other businesses in the local economy, and how the company will possibly develop in the long-run.
Even so, it is unlikely that a 29.1 percent growth rate could be sustained over a significant period of time if companies generate gross receipts but fail to show profits. Furthermore, the study apparently failed to take into account other factors, such as business failures, which tend to be more prevalent among small businesses, and the fact that while the growth rate for small businesses may be high in their earliest years, they are unlikely to be sustained over the longer term.
[5] The Postlethwaite & Netterville study suggests that the CAPCO structure tends favour debt investment rather than equity investment, perhaps restricting the potential growth of portfolio businesses. From 1988 to 1998, the Louisiana CAPCO program generated $517 million in tax credits, of which $136.9 million had been taken. CAPCOs reported $804 million in assets at the end of 1998, of which $145.7 million was invested in qualified investments. At the same time, $246.6 million was invested in restricted US government securities (as collateral for notes). More than half of investments in qualified businesses were debt.
[6] Douglas J. Cumming and Jeffrey G. MacIntosh, “Crowding Out Private Equity: Canadian Evidence” (2002), Draft Paper, at 3. Copy kindly provided by the authors.
This article originally appeared on The National Association of Seed and Venture Funds (NASVF) website.
Citation: “State-Sponsored Venture Capital: Are CAPCOs a Solution or a Problem?” (2004), vol. 8, no. 25 NASVF – NetNews 9151.
This article draws extensively from Daniel Sandler, Venture Capital and Tax Incentives: A Comparative Study of Canada and the United States, Canadian Tax Paper No. 108 (Toronto: Canadian Tax Foundation, 2004), xxi, 527 pp.

http://article.legalera.in/articledetail.aspx?aid=47
In India, firing, killing, stabbing in self-defence is a tricky measure of self protection. The onus naturally lies on the person to prove his/her point. While the Supreme Court has said that a law abiding citizen need not be a coward and can kill to protect self, there are still some grey areas of self defence that need the spotlight. What if the person who fires a gun shot is a police officer in the middle of an encounter with a criminal or terrorist or gangster? What if the person is a skilled martial art expert whose modesty has been violated?
Does Indian Criminal Procedure Code prescribe different measures for police and different for the common man? In a violent situation no one has the time to think right or wrong. Action to protect is of utmost importance. To kill or not to kill becomes another opinion altogether.

To kill or not to kill in self defence?

It’s ok, now, Indian citizens have legal sanction. Whether any other justice will come forth or no, one thing has become amply clear. The New Year has started with the stamp of approval from Supreme Court that a law abiding citizen can kill in self-defence. Escaping would tantamount to cowardly behaviour and no self respecting person could bear to lose life. It took a gunshot fired in self-defence from a brave citizen residing in Punjab to make changes in the law.
Justice Bhandari writing a 41-page judgment for the bench noted that the right of private defence is recognised in all free, democratic and civilised countries and self-preservation is the basic human instinct and is duly recognised by the criminal jurisprudence of all civilised countries. Laying down ten guidelines, where right of self-defence is available to a citizen, but also cautioned that in garb of self-defence, no one can be allowed to endanger or threaten the lives and properties of others or for taking personal revenge. The apex court concluded by saying that, a person, who is under imminent threat, is not expected to use force exactly required to repel the attack and his behaviour cannot be weighed in golden scales. Right of private defence is thus designed to serve a social purpose and deserves to be fostered within the prescribed limit.
Here is what happened in a small town in Punjab. The apex court acquitted one Darshan Singh from Punjab, who had killed Gurcharan Singh in self-defence on July 15, 1991. Father of Darshan Singh was attacked with a gandasa on his head. When Gurdish Singh proceeded to attack Darshan Singh, Darshan Singh open fired in self-defence. In the process, Gurcharan Singh was killed. The apex court, while setting aside the judgment of Punjab and Haryana High Court convicting Darshan Singh, restored the order of the trial court recording his acquittal. His father Bakhtawar Singh died during the pendency of his appeal. A bench comprising Justices Dalbeer Bhandari and Asok Kumar Ganguly, while acquitting a person of the charges of murder, said on January 15 that when enacting Section 96 to 106 of the IPC, accepting from its penal provisions, certain classes of acts done in good faith for the purpose of repelling unlawful aggressions, the Legislature clearly intended to arouse and encourage the manly spirit of self-defence amongst the citizens, when faced with grave danger. The law does not require a law abiding citizen to behave like a coward, when confronted with an imminent unlawful aggression. As repeatedly observed by this court, there is nothing more degrading to the human spirit than to run in face of danger.
Four years ago

During a lecture on ‘Law and violence on women’ in the Lucknow University, Senior advocate of Supreme Court, Arvind Jain, encouraged girl students to learn the art of self-defence, but never to hesitate in killing the man who tries to outrage their modesty. He felt, in India fighting a case against rapist was far more difficult than fighting a case of murder in self-defence. “When state fails to deliver justice, people take law in their hands. Nagpur is an example, where a rape victim led the crowd to kill the rapist,” he quipped, amidst claps and cheers by girls at the Lucknow University.
The Indian Law allows a person to kill in self-defence and a woman to protect her modesty. In a decision, Supreme Court has held that a father who killed a rapist while defending her daughter was an act of self-defence.?™. The senior lawyer explained, “Rape is an attempt of male community to terrorise the entire female community, telling them look it can happen with you as well if you will refuse to obey the male,” he said. He insisted, “Don’t think of family respect but report cases of molestation and rape.
Fifty per cent of such cases are never reported because rapists are from within the family or a neighbour or a relative,” he said and added that women should openly come out in support of victims.
Jain also commented on the gender insensitivity in Indian law and judicial system. It is not only amusing but at times leads to disgusting situation. But it acts swifter when an accused is a woman.
When the police kill in self defence
Numerous films have been made in the past on encounter specialists extolling their virtues. And now recently one hears that most of the encounters were faked and smacked of plain oneupmanship. Reduced to becoming zeros after tag of heroism, citizens are also asking why criminals and terrorists are being busted in ‘encounters’. Should not the police also file FIRs like other citizens? Are there other laws for the men in uniform? With high incidences of terrorism and criminal nexus, the police really have no choice as it can be seen in other parts of the world. The way the police behave reflects eventually on the morale of the citizens of the state. The issues pertaining to human rights and human dignity of the citizens at large, have, unarguably, dominated the base of any country’s own laws. Article 14 of Indian Constitution provides for equality to every citizen of India before the law, but does it mean that in practice every citizen gets equal access to it?
Encounter deaths have become common place today in Maharastra and New Delhi. They are being done to protect citizens and also to fire in self defence considering criminals don’t think twice before killing anyone. The procedure guiding encounter deaths is given in Criminal Procedure Code, 1973. Section 156 provides for police officer’s power to investigate cognizable cases. But does police in every case of cognizable offence follow this procedure? Rarely does this happen. In cases of encounter deaths, the police file a FIR against the dead making him the accused. The FIR states that the accused attacked the police party and in self-defence the police had to kill the accused. The problem arises after this. Who gave the power to decide whether the police party kills the accused in self-defence or not? There are not many incidents where the police have acted fairly in probing encounter deaths. In one case in the National Human Rights Commission directed the Uttar Pradesh Government to pay Rs: 16 lakhs to the family members of the four victims, killed during a “fake encounter” with the State police. The NHRC said “material collected by the Crime Branch, Criminal Investigation Department, clearly brought out the fact the aforesaid encounter was entirely ‘fake’. Four innocent persons were brutally killed by the police after taking them out from a hotel.” The British Police after the recent London Bomb blasts adopted a policy of “shoot to kill”. The Metropolitan Police Commissioner Ian Blair said, “I think we are quite comfortable that the policy is right, but of course these are fantastically difficult times”. It remains unclear whether the Commissioner was referring to “fantastically difficult times” for the police or the citizens- who are under the dangerous haze of so- called “protection” offered by the police.
Who decides whether or not the action of the police in shoot- outs could be covered under the coveted guise of “Self Defence”? Or the force and the extreme exercised by the police was appropriate the impending threat? Has Indian Judiciary delegated this power to the police? Are the police trying to create a parallel judiciary? Are there any answers for these queries?
Another story of self defence
Thirty years after they killed a man, the Supreme Court on Thursday let off two accused holding that they were entitled to acquittal as the act was committed in exercise of self-defence which is permitted under the law. A person can kill another when there exists a reasonable apprehension that his adversary is going to cause him/her grievous injury even though he might not have actually inflicted any, the Supreme Court ruled.
“In that event he can go the extent of causing the latter’s death in the exercise of the right of private (self) defence even though the latter may not have inflicted any blow or injury on him,” a bench of Justices Dalveer Bhandari and H S Bedi observed. The bench passed the ruling while dismissing an appeal filed by the UP Government challenging the acquittal of Gajey Singh and Rajpal Singh in a murder case that occurred on 27 January, 1979 in Meerut town following an old enmity. In this case, Lakhi Ram along with a few others had gone to the place of Gajey and Rajpal where a scuffle took place and the duo was assaulted with sharp weapons. In retaliation, Rajpal at Gajey fired a shot resulting in the death of Ram. The trial court convicted the duo for murder and sentenced them to life imprisonment, but the accused were acquitted by the Allahabad High Court which held that they committed the act in self defense. Aggrieved by the High Court’s verdict, the state government appealed in the apex court.
Interpreting Section 100 of the IPC, the apex court said the law justifies the killing of an assailant under the “right of private defense” which was rightly exercised by Gajey and Rajpal. According to Section 100 of the IPC, killing of another person is not an offence, if the same was done in the exercise of self-defense. In the instant case, the apex court said that there was sufficient evidence to indicate that Ram and his accomplices had come to the house of the accused and assaulted them with sharp weapons resulting in grievous injuries to both of them. “In such a situation, accused persons could have a reasonable apprehension of death or at least of grievous hurt. It was a case of single gunshot which was not repeated. Therefore, it cannot be said that the accused persons had exceeded their right of private defense in any manner,” the bench observed.
Can asking the question on self defense become a pre-mediated murder?
A 16 year old teenager having a gun posted a blog and asked if he was justified in killing someone in self-defense. The blog went thus:
Im 16, but say somebody my age attacks me, and out of self defense i fight back, but i kill this person… if i can prove i was just protecting myself, would i still “be in trouble” for murder.
The first comment that was posted on the blog was:
it would have been legal, but now that you have been thinking about it, it is premeditated murder.
Legal opinion on this which is being extolled elsewhere in the world is:
When in a self defense situation, the law is that you can only retaliate to the attackers in an equal manner to how they threatened you. What i mean by this is that you can only use an equal amount of damaging force that the attackers present you with initially. Like for example, if someone puts a gun to your head when at an atm machine, you have the right to exert deadly force on the attacker, because the gun itself can be deadly. So in court, you probably won’t be ‘in trouble’ as you said. But if you are at a bar, and someone is bothering and hassling you, and is about to punch you maybe, you definitely cannot pull out your knife or lethally injure him. The guy is deserving of a few punches maybe, but definitely not being strangled to death. You will definitely get in trouble with the authorities if you do. If someone confronts you with a stick on the street- the stick can cause serious damage, and thus you have the legal right to impart as much damage in this self defense situation, say maybe disarm the attacker, then break his arm. But then again, killing him might be too much even if its self defense.
This is a very ‘grey area’ for many martial artists, and all people have their own opinions. As for people trained in martial arts the rule by the thumb regarding self-defense is: if you feel that your life is in danger you have the right to take a life. Just make sure you can prove to the police that you were ABSOLUTELY sure that you were going to die if he didn’t. An expert martial arts instructor once said “Its better to be judged by twelve then carried by six”. The burden of proof would lie on you to prove that you believed you were in mortal danger. AND you would have to prove that you tried to end the fight without using deadly force.
The legal contours of the right of private defence in our country are laid down in Section 96 to 106 of the Indian Penal Code (IPC) and various judicial pronouncements on the issue. These are broadly the following:

(1) The right entitles a citizen to use force to protect life and property, both his own and that of others. Where there is an apprehension of assault that may lead to death, grievous hurt, rape, unnatural offence, kidnapping or a certain type of wrongful confinement (Section 100 IPC) and in cases of robbery, house-breaking by night, mischief by fire (that may threaten human life and property) or theft. Mischief or house trespass involving risk of death or grievous hurt (Section 103 IPC), the citizen’s right of self-defence extends even to the causing death of the assailants.
(2) The right accrues with the rise of apprehension of harm and vanishes when this is over.
(3) The force used in self-defence must not be out of proportion to be injury apprehended.
(4) The danger to the person or property must be real and not imaginary. It should be imminent and not remote.
(5) The right is equally available against the acts of minors, persons of immature/unsound mind and intoxicated individuals (Section 96 IPC)
(6) In the effective exercise of his right of private defence against a deadly assault, the defender can even put innocent lives at risk (Section 106 IPC)
(7) The right is, however, not exercisable against the public servants acting in good faith under the colour of their office or those acting under their direction, unless danger or death or grievous hurt is involved.
The right is strictly preventive and not punitive in scope.

No calls no credit
What can an Indian offshore BPO or KPO do when their American clients have stretched their credit limits and not paying up?

The economic challenges in USA have changed the way financial crisis are dealt with especially in off shore call centers where the dues are piling up. India seems to be the biggest loser in the bargain unless BPOs strictly say, “No calls no credit’. What’s worse is that lower service providers like Philippines and Vietnam and nearshore countries like Mexico are grabbing the business.

Here is a ring side view of the fall out of unlimited dreams, graveyard shifts and youngsters desperately seeking better pay packets when the calls are dropping and American clients not paying up. All is not well, but the ring tone can still be active if BPOs can survive the credit scare and snare in America.

Steve Myrs, President of Myrs Credit Advisors, Inc. has 34 years of accounts receivable experience in Credit Services for BPO and Ex-Im.

The background

In 2008 when the recession had started taking a toll on larger companies in America, few expected it to continue this long. Cash reserves are dwindling. In a country that survives on credit cards, swiping isn’t common anymore. Some intelligent financial advisors saw the writing on the wall and knew that it would not be long that the offshore franchises of American companies will be affected. Well, the problem has already come on Indian shores. The recession has caught on and it is now a matter of time that the domino effect is likely to take place. One can only provide hints to survive and dodge the bad debts and foreclosures. The economic situation is affecting more BPO companies as the global recession that started in 2008 drags into 2010. Cash flows of their clients are being interrupted. American companies that paid their bills on time are now paying 10 – 20 days late. Companies that were paying 10 – 20 days late are now paying 40 – 60 days late. Companies that were paying 40 – 60 days late, are now not paying at all and in most cases are out of business or soon will be. Everything on the financial landscape has changed, therefore credit managers and BPO owners must adapt and change policies. They must be more vigilant.

Avoiding the dwindling financial scare

Here is what the BPOs can possibly do to avoid total shut down of services and laying off thousands of employees. BPO companies need to watch their receivables much more closely. Talk to your clients and listen to what they say. Ask them how their business is doing. Discuss topics that will give you an idea of their financial health. That does not mean, to stop granting credit and to put everyone on cash. If you do that, your business will suffer due to loss of revenue. You will also alienate your clients. Ultimately, your business will lose, if you implement a “no credit” policy.

Ready Tips

• If you have any doubt, retrieve a financial report or contact a credit advisory firm to do some research on their current financial condition. Internet credit reports, even from the large and very well known credit bureaus are not enough by themselves to make a solid decision.

• Hire a credit advisory firm in the home country of you client and have them investigate and send you their findings. There are not many firms with the ability to do this, but there are a few. You can expect to pay between USD $100 and $250 for advice from a good firm. This expenditure is very worthwhile.

• In the beginning process of taking a new client, it is very important to analyze your client’s credit worthiness. It is imperative to do this before you invest your resources.

• Once the business has started and if your client unfortunately gets in arrears, you need to have an ongoing dialogue with them about the situation. If they fall further behind, don’t threaten them. Ask them if they have a plan of recuperation. Discuss it. Try to partnership together.

• If the situation continues to deteriorate, give them a realistic deadline concerning which services will be interrupted and exactly how much they must pay to continue. Try not to “cripple” their cash flow, but let them feel some financial pain from the interruption. At this step, only interrupt the supportive services and not any service that would halt operations.

• If they still do not pay or have not become less delinquent after you taking these initial steps, tell them about the next level of services, you are going to discontinue. Give them a deadline with ample time for them to adapt.

• If they miss the deadline to become current, do what you professed to do.

• Your client will most likely do one of two things; pay you or completely leave your services. If they leave, they also most likely will not pay you anything.

• If they leave without paying, you need to immediately contact a collection agency in the U.S.A. that specializes in BPO. There are very few, so be careful who you engage.

• Legitimate agencies will work on the policy, “No Cure, No Pay”, which means the creditor pays nothing, unless the agency collects money in their behalf. If an agency asks for advance payment, do not engage them. Move away from them as quickly as possible.

• The next question is the fee schedule. Reputable agencies will charge 10% to 30%, depending on the case. The two main factors of fee percentage will be the age and the amount of the debt. Other factors will involve disputes of record, ceased operations, and the general complexity of the case.

• Fees can also be based on incremental collected funds or on the total amount of the claim. If it is on collected funds, the percentage fee will be calculated on the actual amount of payment received on an incremental basis. If it is based on the total amount, it will be a fixed percentage. The “incremental” percentage is most often levied on the smaller amount files. It is usually in the best
interest of the BPO to work on the fixed fee schedule, so try to negotiate this type of arrangement.

• The next question to ask the agency is about the handling of the collected funds. Is the debtor directed to pay the BPO directly or are they directed to pay the agency?
Agencies in general prefer to hold the funds. This is okay, but make sure it is a reputable firm and make sure the funds are not held more than 30 days. If you can negotiate direct payments to you from the debtor, you are in a safer position. If the agency refuses to accept this arrangement, this does not mean this agency is not reputable, but it is an indication of whose best interest comes first; the agency or the client.

• The U.S.A. has been plagued in the past with the old scam of agencies collecting funds and never remitting to the creditor. Be careful which agency you choose.

• If an agency has not had any success within 120 – 150 days, they should at that point, collaborate with a collection attorney in the home state of the debtor. In many cases, the agency will know if the file should be moved to an attorney in a much shorter period of time. It all depends on the feedback and interaction between the debtor and the agency.

• There are 50 states within the U.S.A. and attorneys must be admitted to the bar of a particular state to practice law within that state. Most attorneys will only be omitted to one or possibly two states, so it is imperative the attorney is authorized to practice law in the state in which the debtor is conducting business. A good collection attorney in close proximity to the debtor will have more of an advantage to analyze the debtor’s ability to pay. First hand information is invaluable. A good agency will provide the correct attorney.

• Once an attorney is engaged by the agency, your percentage fee will increase. Try to have the agency lower their fee to offset the additional 15 – 20% that the attorney will charge. Your total fee should be able to stay at a maximum of 35% contingent on the funds being collected. The agency and attorney are both on contingency fees based on a percentage of the collected funds. The BPO will be required to advance funds for the court filing fees and other miscellaneous fees connected to the legal process. Depending on the state, your advancement will be between USD $200 and $700. This is a non-contingent fee and it will not be refunded.

• Once the petition is filed with the courts, this usually gets the attention of the debtor and a settlement is hopefully reached. If not, the case will go to court. A representative of the BPO must be prepared to make a personal appearance on the day of the court action as a witness against the debtor. The BPO witness will make a statement concerning the amount and the nature of the debt.

• If the BPO prevails and the court places a judgment against the debtor, the BPO will have won their case, but there is no guarantee you will receive your money.

• Many debtors will voluntarily pay the judgment or make arrangements for payments, although other debtors will not voluntarily pay.

• If this is the case, the BPO will then need to file another petition in the court for the judgment to be enforced. When you are granted the right of enforcement, you then will be able to collect against bank accounts and other assets of the debtor.

• If the debtor has no assets or files bankruptcy after the judgment is attained, the BPO will not receive any money. This is why it is very important to engage a good agency that will engage a good attorney that will not take the case, unless they are very sure of the debtor’s ability to pay. You do not want to “throw good money after bad money”. A worthless judgment serves no purpose.

Know your client’s credit worthiness, before you provide the service, not after.

And

If you need help collecting, engage a reputable agency.