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Euthanasia: Divergence between conscience and human rights

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“Death alone is one friend that can bring peace his treasures cannot purchase, and remove the pain his physicians cannot cure.” –

Mortimer Collin

It is a desire of every human being to live his life to the fullest. But there are times when he desires that his life should end and to fulfill this desire, he uses unnatural means. When he himself ends his life by using unnatural means, it is called suicide but ending his life by others with the consent of the deceased, is called “euthanasia”. Euthanasia is related to terminal illness. People who are terminally ill and who don’t want to suffer through the rest of their lives request for mercy killing or euthanasia. Such persons shall have the right to die according to their own wishes. Euthanasia has become significant in India due to the recent changes done by other countries like Belgium, Netherlands, England, etc. in their respective laws. Euthanasia has lately been a hot potato in India and abroad as it affects the moral values, thoughts and culture of the society. However, the Supreme Court of India has legalized “passive euthanasia” in India through its judgment in “Aruna Shanbaug Case”.

“Mercy-Motivated Killing” or Euthanasia is closely concerned with homicide. Euthanasia or Mercy killing has been in practice since time immemorial and its history roots to the ancient traditions in the Greek and Roman world. In today’s world, the debate on this issue has been triggered again due to the advancements in medical technology. In India, there are various instances where Euthanasia has not been granted by the President or by the Supreme Court. A farmer suffering from AIDS was forced to live in his incapacitated condition after the President of India refused the grant of Euthanasia. A former Chess champion suffering from neurological disorder had to live with his disease when the High Court of Andhra Pradesh rejected his plea. These requests were rejected as euthanasia was illegal in India before 2018.

The judgment of the Hon’ble Supreme Court of India in the case of Aruna Shanbaug considers several issues relating to euthanasia also consisting right to a dignified death. This case suggests de-criminalization of attempted suicide, distinctions between active and passive euthanasia and more importantly facilitates a wider discussion on the rather sensitive issue of death and dying. Even though the term euthanasia is relatively of a recent origin, the notion of a good death is an old one which is often culturally construed. In India, for example, culture has played an important role in self-administered death as death is couched in spiritual practices such as moksha. The evidence can be seen in Hindu Holy Scriptures where specific notions about the body and purpose of human life are mentioned.

Physician-Assisted Suicide and/or Active Euthanasia, means the practice of ending one’s life to relieve his everlasting pain and incurable disease, and this has become a controversial issue all over the world. There has been a lot of debate on this issue with many advocating for and many against the legalization of Active Euthanasia. The families, physicians and Judges cannot decide whether to end someone’s life without his or her consent. The consent of the patient is of utmost importance while administering euthanasia or while refusing medical treatment. After all, it is the patient’s life which is at stake and the patient only can decide whether his life is worth living or is meaningless. The question which arises here is that “Doesn’t the patient have a right to ask for this help?” and, if a doctor is willing to give it, “Why should the law stand in the way?” The Legislators should lay down a specific law on Euthanasia which should include every of its aspect for the terminally ill patients and to protect them from self-destruction. The law framed by the Legislators shall also include safeguards for the protection of the patients so that they can die with dignity. In the recent decade, Dilemmas to end life have taken a wide space in various countries which has increased the need of having Euthanasia Law in place.

The emerging issues of human rights in the National and International sphere is associated with Euthanasia and Physician Assisted Suicide which in turn relates to right to die with dignity which comes under the ambit of right to life under Article 21 of the Indian Constitution. The right to human dignity requires that the physician gives assistance to his patient to avoid unbearable physical and spiritual suffering. The advancement in medical technology has resulted in doctors not only measuring death with heartbeat and breathing but also with the brain, brainstem and brain death. The debate on withdrawal of life support systems has also to be seen in the context of the healthcare industry which inflicts futile costly treatment and unnecessary interventions on patients.

This article looks forward to determining whether mercy killing is right or wrong. This article will provide critical and challenging ethical thoughts. Another aim is to overview the court decisions and writings of a number of contributors in the field. The decision to end the life of terminally ill patients who request it is difficult and uncommon. The considerations of family feeling are both subtle and important, particularly if the patient is an infant or young person, and the loss of consciousness was unexpected. This article deals with one of the most debated topics in the field of medical practice and law. The debate is regarding the legalization of euthanasia with the assistance of physicians. This debate is a continuing one as some people say that life belongs to oneself, so each person has got the right to decide what he wants to do with it even if it amounts to dying.

With the advancement of technology in the medical world in the early 20th century, human beings have gained control over processes of life. Now that they have gained control, they define life and death according to their own interpretations and give different meanings to life as well as death. But this paradigm shift in the medico technical field, does not guarantee better quality of life. The innovations have led to transfer of power to die from professionals like physicians, doctors, etc. to the patients themselves. However, the primary approach should have been that the patients were given the right to take decisions on ending their own lives. The patient when in sound/ rational mind must make the right choice whether to live or to die and he must take the responsibility of the same. The rights that accrue to a patient as a result of innovation in these fields is the right to choose proper treatment for diagnosis, or he can also opt to refuse treatment or he also has an option of ending his own life with dignity i.e. right to die with dignity.

Right to die with dignity does not only mean to end a poor quality life. The positive notion of good death includes “good quality of life”, a life which is meaningful not merely animal existence, life which is respectable, productive and useful where a person does some good to society. Hence, a meaningless life of a patient in a persistent vegetative state suffering from pain puts him at the mercy of others and such kind of life is not worth living. Therefore, the patient who is terminally ill as well as his/her family members has an option to end his life in a dignified manner. In India, there is lack of support from the family members and the responsibility of family members have been shifted to old age homes, government and private institutions and as there is no organized effort to run these institutions, the terminally ill patients have to depend on their families at the end of the day without their willing support. Such dependency of the terminally ill on family members who are not willing to support has led to desire of passive euthanasia. The reason behind non-supporting family members can be unwanted loss of money, loss of social opportunities, time and efforts and that too on a patient whose disease can never be cured.

PSYCHOLOGICAL EUTHANASIA

Every country which has made Euthanasia legal has its own limitation, a set of guidelines which would be followed by doctors administering Euthanasia and/ or physician assisted suicide (EAS). In those countries and on fulfilling those conditions only, Euthanasia or Physician Assisted Suicide can be requested by people suffering from psychiatric disorder. It is a very rare practice to administer Euthanasia to someone who has psychiatric disorders. The Netherlands became the first country to pass law on Active Euthanasia and legalize it. Only 1 per cent of all reported Euthanasia cases in the Netherlands are related to psychiatric disorders. This is because, a person with psychiatric disorders is unable to decide what is in his best interest which is a criteria to grant euthanasia, if that criteria is not fulfilled, euthanasia or assisted suicide cannot be administered. In the Netherlands, Euthanasia or Assisted suicide among psychiatric patients has become frequent. Not much is known about Euthanasia and Assisted Suicide; only those cases have been highlighted and have come into record which was reported to Euthanasia Review Committees in Belgium and the Netherlands. Various studies have been done to keep a check on physician assisted suicide in the Netherlands as well as Belgium which become relevant as these studies aim to provide estimates of Euthanasia requests made to psychiatrists and to describe the characteristics of the patient requesting assisted suicide because of psychiatric disorders. The main reasons of assisted suicide in people suffering from psychiatric disorders are depression, desperate situations of life, a disease which cannot be cured, etc.

Euthanasia requests made to a physician brings with it due care and deliberations which have to be fulfilled by the Physician while administering assisted suicide, the emotional impact on the physician in such cases can be considerable. But if the doctor does not administer euthanasia due to his personal reasons, then he can be held liable. This is a principle in the Dutch. The patients to whom, euthanasia was denied were suffering from psychiatric disease or dementia. The question here arises whether requests of people suffering from dementia or psychiatric diseases can be fulfilled and if it can be fulfilled, whether the doctors would do so. The answer has been given to this by the Review Committees in the Netherlands when these cases came up. The committee was of the opinion that the due care criteria should be fulfilled in such cases to grant euthanasia and the suffering of the patient must have been caused by some medical condition.

For this purpose, one needs to study the relationship between mental illness, psychological factors and euthanasia. A person suffering from incurable disease may also have a feeling of shame, feeling of not being wanted, etc. These feelings can arise due to tension of not being able to cope up with the treatment which ultimately leads to misery and depression. The psychiatric disorders are associated with risk of suicidal behavior as the mental disorders are in the brain. The most common mental illness among the elderly is depression or brain death which in some cases becomes the cause of somatic death. Somatic death occurs when the organs of the body are deprived of oxygen, the supply of oxygen stops with the death of the brain.

Euthanasia and Psychological Behavior: The Psychological behavior of a person changes due his suffering. This suffering can be a result of depression or terminal illness which is a product of depression. Poor will to live and desire for death leads a person into depression. These people suffering from depression and terminal illness tend to request Euthanasia or assisted suicide. For example, in Holland, elderly people with depression are considered to be better off dead. In Holland, people with mental disorders have also been administered Euthanasia though they did not suffer from any physical pain.

Medical Issues: The medical issues which arise in these cases are that there is a difference between mental disorder and somatic disorder and the treatment for somatic disorder cannot be applied to mental disorder. Somatic disorder is categorical in nature whereas mental disorders are dimensional. Moreover, the research in the field of psychiatry is not up to the mark to predict the natural course of mental disorder.

Ethical Issues: The primary debate on Euthanasia is on these issues only. Whether the Physician has basic responsibilities to stand for those people who are mentally ill or suffering from mental disorders and to protect them to the best of their interest. Prevention of suicide is the best example on this issue. Physician assisted suicide is opposed to the medical goals. The society also plays an important role in making a person depressed and leads him/ her to commit suicide. The literature in this view is a fear which entails in a person whether he will be accepted socially or not.

The most important case on psychological euthanasia is the “Chabot case”. According to the facts of the case, a woman was suffering from depression or in medical language psychiatric illness. She made a request to her Psychiatrist for Euthanasia and/or assisted suicide. The Dutch Supreme Court held that the Court in such cases must deliver its decision based on the decision of an independent expert who knows about the patient’s illness. Thus, the Dutch Supreme Court made this an essential requirement which needs to be fulfilled to grant mercy killing. According to this judgment of the Supreme Court, this is an essential requirement only in cases where a patient is suffering from mental or psychiatric disorders. It has been termed as a ‘necessity’ which has to be fulfilled by the Court delivering its decision. However, in cases not concerned with mental disorders, it is totally upon the Judges to decide whether a question is of greater importance or lesser importance. In the Chabot case, the psychiatrist administered euthanasia to his patient who was suffering from mental disorder but he was aware enough that he consulted other experts before administering euthanasia to his patient but none of the other experts examined the women. On this point, the Supreme Court ruled that this cannot be called a necessity. However, the Psychiatrist was not punished as in the view of the Supreme Court, he could not have known about this obligation. The Chabot Case, laid down a procedure which would be followed by the Dutch in every case of psychiatric illness which pops up in the country.

As mentioned above, the advancement of medico technological world in the early 20th century has paved way for advancement in the laws pertaining to Euthanasia. With the techno medical innovations in the first half of the 20th Century, Euthanasia became a topic of prime importance in the second half of the century not only in India but all over the world. The concept, legal framework, and status of euthanasia have been a hot potato in various countries. The Legislators and the Judiciary in those countries have constantly been focusing on either decriminalizing or legalizing euthanasia and physician assisted suicide and its protection in times to come. The question of legalizing euthanasia has faced rejection in many jurisdictions; however, there are some countries that permit either euthanasia or assisted suicide or both. The law on euthanasia has found its place in various jurisdictions which are as follows.

The Netherlands

The velour with which the Dutch have handled euthanasia is commendable. Legalizing euthanasia in such a transparent way makes the Netherlands the most honest country and it has served as a guide to various countries as well. Actually, the Dutch have a world class health care system which includes free nursing homes. The hindrances relating to finance, inadequate medical care, etc. faced by other countries remained out of play in the Netherlands. The legal system in the country is also based on consensus which also helped in making good the drawbacks. According to Maas and Leenen, the move relating to Euthanasia and Physician Assisted Suicide started in the Netherlands with a troublesome case of one Dr. Postma in the year 1971 after she injected morphine to her mother who was partially paralyzed and deaf. This case triggered a debate all over the country and various committees were set up to find a solution to the problem. In 1984, a criterion known as ‘Rotterdam Criteria’ was made by the Court. This criterion would act as a guide to doctors while taking decisions to end some one’s life. The Royal Dutch Medical Association (KNMG) and the Government together laid down conditions which if followed while administering euthanasia will not attract prosecution. However, these conditions were changed with time as there were some loopholes in them. The definition of euthanasia in the Dutch is only restricted to active voluntary euthanasia.

Between 1990 and 1993, KNMG delivered four reports on Euthanasia. In the year 1990, the Remmelink Commission was set up to investigate upon the issue of euthanasia. The report of this committee was published in 1991 where the main reasons of euthanasia were cited to be loss of dignity, dependence on others, pain, etc. Studies were also carried out in Australia and Belgium to check its abuse in the country. Finally, the legislation on Euthanasia in the Dutch was passed in the year 2001 with the majority consensus. This law included both euthanasia and physician assisted suicide. The Netherlands became the first country to pass such law and legalize euthanasia. The law of 2001 elaborates the requirements laid down in 1991 as ‘due care criteria’. A person will not be prosecuted if he fulfills the due care criteria. There are 6 criteria to be followed. These are:

REQUEST OF THE PATIENT IS VOLUNTARY

Patient’s disease has no cure and his suffering is unbearable

Patient is informed about his further prognosis

Discussion leading to consensus that there is no other solution to the problem

Consultation with one other doctor who is not connected with the case

Due medical care and attention would be given while administering euthanasia

It is pertinent to note that withdrawal of life support is not considered as “passive euthanasia” because the term “euthanasia” refers to “active euthanasia”. The Dutch law is considered to be on a “slope”. This slope pertains to active euthanasia and passive euthanasia. The one supporting legalization of active euthanasia considers law a road or a slope to legalize all forms of dying on request. The slippery slope can be formed between administering euthanasia to those who are terminally ill and administering assisted suicide to those who are healthy but tired of living. The practice of Euthanasia in the Dutch may or may not be subjected to slippery slope. So many committees, guidance, judicial intervention, debates could not even bring The Netherlands down the slope. Even today the studies show that the slope on which the Netherlands is moving is steep. Now after a paradigm shift in the laws of the Dutch, the country not only allows euthanasia for those who are terminally ill but to anyone who is suffering.

AMERICA

In the 19th century, if one advices another to commit suicide and on that advice the other persons kills himself then the adviser was held guilty of murder which was a well-established principle under common law. Right to life according to the common law in America is considered sacred and inalienable. By way of two most important and landmark judgments, the United States of America made Euthanasia totally illegal, these cases are Vacco vs. Quill and Washington vs. Glucksberg. The Court in these cases was of the view that physician assisted suicides should not be in contravention of the US Constitution. However, the patients have all the right to call for measures which could be a serious threat to life and death caused in this process is not illegal as it would be considered passive euthanasia which is legal in the United States. The patients also have the right to refuse medical treatment.

Active Euthanasia is only legal in four states of the United States, which are Washington, Texas, Oregano and Montana. If Physician assisted suicide is allowed in the U.S. the elderly who have lived their life long enough and for whom life is meaningless would want to get administered with euthanasia. Other people who would avail this would be the terminally ill ones with diseases which cannot be cured. Presently, attempted suicide is not a crime in any American Jurisdiction and no right has been provided by the US Constitution to assisted suicide. The rights are only provided in some specific state provisions. In the state of Oregon, assisted dying is legalized under Oregon Death with Dignity Act, 1997, in Montana by the Judiciary and in Washington by Washington Death and Dignity Act, 2008. To conclude, it can be said that the Laws in the United States of America relating to Euthanasia, can be distinguished between Active and Passive. Such clear distinction gives clarity that U.S is not confused on its Euthanasia laws.

England

In the United Kingdom, Euthanasia is a crime; however, the Courts are tolerant as doctors who administer assisted suicide are not convicted under the Suicide Act, 1961. Assisted Suicide is illegal in the United Kingdom in the present time, any person found administering assisted suicide can be convicted as Section 2 of the Suicide Act, 1961 provides for aid, abetment, procure or counsel to commit suicide. A person who himself takes his life cannot be convicted but the one aids can be. The ‘right to die’ was considered a key element in the case of Ms. B vs. An NHS Hospital Trust, where the Court clearly states that a doctor would be held liable if he acts contrary to the wishes of the patient to remove or withdraw life support equipment even if the result is death. It would be considered unlawful to treat a patient against his/ her will. This approach was taken by the House of Lords in many cases which came up before it. The law relating to Euthanasia is now well settled that if the doctor acts with due and reasonable care in the best interest of his patient to remove life support equipment, it will not be regarded as a crime. The issue here arises, if a person is in his persistent vegetative state, then who will decide what is best for the patient? However, there are numerous judgments on this point in the laws of the U.S.A.

Please read concluding on thedailyguardian.com

HUMAN RIGHTS IN PSYCHOLOGICAL EUTHANASIA

The basic instinct of common law is the protection of human rights and bodily integrity against invasion by any other person. When the basic human rights of a person are infringed, the liability arises on the person who has infringed the human right. The liability can be civil as well as criminal. Civil Liability includes actions or suits for damages and criminal liability includes battery and assault. According to the International Human Rights law, a patient cannot be treated without his consent. This approach is carried on by various nations including India. The consent of the patient to be treated is an essential for giving medical treatment to him/ her. Since English Human Rights Act, 1998, has come into force the human rights debate relating to euthanasia has been advocated by many. According to them, the denial of right to die is inhuman and degrading treatment which is not allowed under Article 3 of the European Convention of Human Rights. Also, it is a clear violation of privacy and dignified life protected under Article 8 of the Convention. Both the European Convention and The English Human Rights Act recognize the right to life but do not pay heed to the right to die.

The request for Euthanasia is a personal request made by the terminally ill patients. The person who wishes to die does not pay heed to the quality of care and resources present as they already are suffering from illness with their body and mind deteriorating. These people do not want to be a burden on their families. In the words of Pope John Paul II “Laws authorizing Euthanasia are opposed not only for the benefits of the individual but also for the benefits of the society as they are lacking in juridical validity” Therefore, the Common Law should guarantee coexistence which should be social so that everyone in the society leads a peaceful and contended life.

Every human being has a fundamental right to life. It does not matter whether that life is contributing to society. The Law both International and National should take special interest in protection of rights of those whose rights can be easily violated by the society. The Utilitarian theory states that an action is morally viable if it increases happiness or decreases misery and according to this theory, Euthanasia and Assisted Suicide is correct. Any law allowing euthanasia clearly violates the right of the government to protect its citizen’s life and that too without any exception. The Law on Euthanasia is violative of Universal Declaration of Human rights which states that right of every person should be protected by law.

In India, right to life and personal liberty is enshrined under Article 21 of the Indian Constitution. The question arose whether right to life under Article 21 includes the right to die. This question was firstly answered in the case of Maruti Sripati Dubal vs. State of Maharashtra where the Hon’ble Bombay High Court held that ‘right to life’ includes ‘right to die’. The Hon’ble Bombay High Court also struck down Section 309 of Indian Penal Code, 1860 saying that it is unconstitutional as it violates Article 14 and 21 of the Indian Constitution. The Court in this case was of the view that Right to Die is just uncommon and not unnatural. The Court also stated that a person suffering from psychiatric disorder needs to get medical treatment and not to be sent to prison cells. However, in the year 1988, the Hon’ble Andhra Pradesh High Court in the case of Chenna Jagadeeswar vs. State of Andhra Pradesh held that right to die is not a fundamental right. The Hon’ble Supreme Court of India in the year 1994 in the case of P. Rathinam vs. Union of India, held that Right to Life includes concurrent right to die under its ambit. This decision of the Supreme Court was opposed in the case of Gian Kaur vs. State of Punjab where it was held by the 5 judge bench of the Supreme Court that right to life does not include the right to die. The Law Commission of India examined the issue again in the year 2008 on De-criminalization of Attempt to Suicide. The Law Commission recommended that attempt to suicide under Section 309 of Indian Penal Code should be omitted as inhuman. In the year 2018, the Hon’ble Supreme Court of India in the case of Aruna Shanbaug clearly held that Passive Euthanasia can be granted to persons suffering from terminal illness and are in a Persistent Vegetative State (PVS). Active Euthanasia is still illegal in India.



In view of the discussion above, we feel that voluntary euthanasia should also be legalized in India and there should a specific full-fledged law which would solely include the Euthanasia and all its aspects. So there is a need to make a law on Euthanasia with its adequate protection. The Recommendations of the Law Commission of India also used as guidelines in Aruna Shanbaug Case should also be taken into consideration to make any law in this regard to prevent misuse of the law and its malpractices. However, cases of terminally ill patients and persons who are in persistent vegetative state, are considered as special cases where passive euthanasia is allowed in India. The Netherlands still remains a guiding light on this issue and if ever active euthanasia is legalized in India, it would be in consonance with the Dutch Law in the Netherlands and Belgium.

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Legally Speaking

The Unresolved Issue of AMP Expenses in Transfer Pricing – India

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One of the most perplexing yet significant concepts within the Transfer Pricing Dispute Resolution is with regards to the Advertisement, Marking and Promoting (AMP) Expenses that are drawn by the Indian Entities of a company for the products of its foreign Associate Entity. This concept has been surrounded by controversy and confusion since its inception within the practice and study of Transfer Pricing and this is because of the absence of any statutes or regulations dealing with it and its jurisprudence is built purely on the judicial precedents that have been delivered by the Tribunals and High Courts, however, interestingly even the courts appear to have a tough time dealing with issues pertaining to AMP expenses.

The origin of this dispute can be traced back to the United States Tax Court in the case of United States v. DHL Corporation, after the introduction of the US Regulations of 1968 which introduced an important concept pertaining to “Developer Assister Rules” as per which the entity which has incurred the AMP Expenses (Developer) would be treated as the economic owner of the brand which is being marketed even though it might not be its legal owner, and the legal owner of the Brand i.e., the Assister need not pay any compensation for the use of the brand by the developer. These regulations were grounded on the notion of equitable ownership of a brand on the basis of the fiscal expenditure and the risk incurred by them, and the legal ownership of the brand has not to be taken as one of the criteria for ascertaining who would be considered as the developer of the Brand or the intangible property in question.

However, it is pertinent to consider that the Transfer Pricing Rules in America create a clear distinction between “Routine” and “Non-Routine” expenditure, which is essential to understand the issue of the monetary remuneration that is given to the domestic associated entity for marketing intangibles. In DHL, the court framed the Bright Line Test (BLT) which created a distinction between the routine and non-routine expenses that were incurred by the companies. According to the Bright Line Test, it is necessary to ascertain the non-routine expenses that have been incurred i.e., for marketing purposes in contrast to the routine expenses that the incurred by the brand’s distributor for product promotion while ascertaining the economic ownership of the intangible in question.

The issue pertaining to AMP expenses was first dealt with in the case of Maruti Suzuki India Ltd. v. Additional Commissioner of Income Tax [(2010) 328 ITR 210] before the Delhi High Court, where the Bench held that the Advertisement, Marketing and Promoting Expenses will be considered as an international transaction only in cases where it exceeds the costs and expenses that have been incurred by comparable domestic entities which are similarly situated. However, the Delhi High Court’s judgement was remanded following which it was challenged before the Honourable Supreme Court in Maruti Suzuki v. Additional Commissioner of Income Tax [2011] 335 ITR 121 (SC) where it was overturned by the Apex Court.

In LG Electronics India Pvt. Ltd. v Assistant Commissioner of Income Tax [(2013) 140 ITD 41 (Delhi) (SB)], the Delhi Bench of the ITAT referred to the precedent by the Delhi High Court in Maruti Suzuki and held that the as per Chapter X of the Income Tax Act, 1961 the Assessing Officer has the right to make an adjustment for Transfer Pricing vide application of the Bright Line Test in issues pertaining to the AMP expenses that have been drawn by the Indian Entity, since this would fall within the ambit of an international transaction, and this would be deduced from the proportionally higher AMP expenses that were incurred by the Domestic Entity in contrast to two similarly situated domestic entities. The Revenue’s understanding that the AMP expenses which are incurred by the Domestic Associated Entity will inevitably result in a benefit to the Foreign Associated Entity in terms of increasing its brand value along with the lack of lack adequate compensation to the latter for the same, is the primary reason behind its attempt to bring all expenses pertaining to advertising, marketing and promotion within the ambit of the country’s Transfer Pricing Laws, thus it takes the job of applying an Arm’s Length Prince on such transactions which are used for AMP and the test that is most widely employed for this purpose is the Bright Line Test which used by the court in the case of LG Electronics, where it looked at the Bright Line, which is a line drawn within the total expenditure for the purposes of AMP which signified the average spending for the same purpose by comparable entities and any amount which would exceed the line would be considered as an international transaction which would represent the expenses that were drawn by the domestic entity for the building the brand value of the Foreign Associated Entity’s product.

The precedent in Sony Ericsson proved to be a gamechanger wherein the court went to the extent of overruling all of the abovementioned judgements with regards to whether AMP Expenses by the Domestic Entity would be considered as an internal transaction. In this case, the court did not face any issues in determining whether it would constitute an international transaction since the entities had submitted that the international between the Foreign Associated Entity and the Domestic Entity also included the money for the purposes of AMP. While the Revenue had relied on the precedent in LG Electronics to show cause for their application of the Bright Line Test in determining the part of the expenses towards AMP that would be considered as an international transaction. However, the court reject the Revenue’s submissions and reasoning while holding that the Bright Line Test did not have legislative or statutory backing and thus the precedent in LG Electronics was overruled with regards to the use and applicability of the Bright Line Test for ascertaining international transactions since this would be considered as an outcome of judicial legislation.

After the precedent in Sony Ericsson there has been a drastic change in the judicial approach towards issues pertaining to AMP expenses within the realm of transfer pricing. However, since the Court has failed to elaborate upon what would constitute an international transaction in Sony Ericsson, the courts and tribunals have gone back to the phase of drowning in confusion to deal with cases pertaining to AMP expenses and have struggled with determining a proper method for the same.

A transfer pricing adjustment can only be made when it has met the statutory framework of highlighting the existence of an international transaction, determination of the price and fixing an ALP in compliance with Section 92 C of the Income Tax Act. While the element of the international transaction was not disputed in all of the aforementioned cases, the primary issue was with regards what would constitute an international a transaction. The definition of an international transaction as per the Income Tax Act includes the parties to have an agreement between themselves for such a transaction and a shared understanding with regards to the transaction and its purpose. In LG Electronics and other cases prior to Sony Ericson, the primary criteria that were adopted by the courted in ascertaining international transactions and unsaid understanding, were on the basis of proportionally higher expenses with reference to comparable i.e. the courts had adopted the Bright Line Test which had been deemed incompatible with the Income Tax Act of 1961

At a glance at most of the cases pertaining to this issue, the Revenue has resorted to proving the existence of international transactions on the basis of the Bright Line Test, and most of the revenue’s judgements also fail to highlight or prove the same, otherwise except for the unique cases in which the Assessee Domestic Associated Entity and the Foreign Associated Entity had a written agreement between the two of them. This issue is purely because of the lack of any regulatory or statutory provisions within the Income Tax Act, and this was also brought to attention by the court in Maruti Suzuki(2011). In the absence of Statutory provisions and the inability to apply the Bright Line Test because of the precedent in Sony Ericsson, it becomes impossible for the revenue in such cases, especially in the absence of a written or express agreement between the Domestic and Foreign Associated Entities, where it is forced to assess the Domestic Entity’s subjective intentions however this method was also rejected in Maruti Suzuki(2011).

While the decision in Sony Ericsson has left the Revenue and Courts baffled with regards to the method, they should use to ascertain international transactions in matters pertaining to AMP expenses, hopefully, this will finally come to a conclusion since it is currently being heard by the Country’s Apex Court. It is of the utmost importance for the Apex Court to elaborate upon the method and procedure that must be followed by the revenue in determining cases pertaining AMP expenses and issue guidelines for the same.

The origin of this dispute can be traced back to the United States Tax Court in the case of United States v. DHL Corporation, after the introduction of the US Regulations of 1968 which introduced an important concept pertaining to “Developer Assister Rules” as per which the entity which has incurred the AMP Expenses (Developer) would be treated as the economic owner of the brand which is being marketed even though it might not be its legal owner, and the legal owner of the Brand i.e., the Assister need not pay any compensation for the use of the brand by the developer. These regulations were grounded on the notion of equitable ownership of a brand on the basis of the fiscal expenditure and the risk incurred by them, and the legal ownership of the brand has not to be taken as one of the criteria for ascertaining who would be considered as the developer of the Brand or the intangible property in question.

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INSURANCE COMPANY SHOULD NOT SEEK DOCUMENTS WHICH ARE BEYOND THE CONTROL OF INSURED TO FURNISH, SAYS SUPREME COURT WHILE SETTLING CLAIM

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The Supreme Court in the case Gurmel Singh vs Branch Manager, National Insurance Co. Ltd observed that due to circumstances which is beyond the insured control and which the insured is not in a position to produce while settling the claims, the insurance company need not be too technical and ask for documents.

While settling the claim, it is found that the insurance companies are refusing the claim on flimsy grounds and/ or technical grounds further which the insured is not in a position to produce due to circumstances beyond his control, While settling the claims, the insurance company should not be too technical and ask for the document As the insurance company ought not to have become too technical and ought not to have refused to settle the claim on non­ submission of the duplicate certified copy of certificate of registration as due to the circumstances beyond his control, the appellant could not produce on payment of huge sum by way of premium and the Truck was stolen, once there was a valid insurance. As the appellant was asked to produce the documents which are beyond the control of the appellant to produce and furnish those documents.

An amount of Rs. 12 lakhs along with interest @ 7 per cent from the date of submitting the claim, the appellant is entitled to the insurance and to pay the litigation cost of Rs. 25,000 to the appellant, the court held while allowing the appeal.

the insurance company has become too technical while settling the claim and the insurance company has acted arbitrarily, observed by the court in this case.

As when an appellant produced the registration particulars which has been provided by the RTO and further the appellant had produced the photocopy of certificate of registration and was just being solely on the ground that the original certificate of registration i.e., which has been stolen is not produced and the non-settlement of claim can be said to be deficiency in service. Therefore, the Insurance companies are refusing the claim on flimsy grounds and/or technical grounds, the facts and circumstances of the case. Furthermore, the appellant had tried his best to get the duplicate certified copy of certificate of registration of the Truck. the insurance company must have received the copy of the certificate of registration, even at the time of taking the insurance policy and getting the insurance.

the appellant has not produced either the original certificate of registration or even the duplicate certified copy of certificate of registration issued by the RTO, mainly on the ground the insurance company has not been settled in an appeal before the Apex Court. The bench further noted that the photocopy 5 of certificate of registration and other registration particulars as provided by the RTO, was being produced by the appellant.

The bench comprising of Justice MR Shah and the justice BV Nagarathna observed and contended that, in many cases, it is found that the insurance companies are refusing the claim on flimsy grounds and/or technical grounds.

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Supreme Court seeks response of Union and states on plea for guidelines to prevent sexual harassment of students in schools

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The Supreme Court in the case Nakkheeran Gopal v UOI & Or’s observed that any kind of harassment including the sexual harassment being carried out at educational institutions The Court while allowing the writ petition issued a notice seeking protection of children.

The plea stated that there is a vicarious liability upon the State Government to implement any law for the well-being and also for the protection of the children in their respective states.

the petition states that to implement any law for the well-being of children and also for the protection of the children in their respective states, it is the responsibility of the State Government and the plea further mentioned that it the vicarious liability of the State Government and It will be considered the lapse on the part of the State Government if there is Any lapse on the part of the educational institution as it remains a crucial department in the State Government With respect to the relevant organization, including Educational Institution, stated in the plea before the court.

The petitioner argued that till date no specific mandate or the law or the guidelines have been issued by the respective States and inspire of alarming rate in the offence against the children especially at school premises.

The petition further states with this regard that children can also themselves be coerced into becoming tools in furtherance of illegal and dangerous activities and under this circumstance the Increased online time can lead to grooming and both online and offline exploitation.

It is essential to ensure the constitutional right to dignity of children provided under Article 21 of the Constitution of India, while protecting children against sexual abuse when they are exposed to predators, which is compromised, stated by the petitioner in the plea.

The petition states that it indicates immediate concerns and measures for intervention are of paramount significance and further the court stated that this calls for the implementation of legislative actions and community-based interventions through virtual media to prevent a further rise in the statistics and to ensure child protection and when the safety of the children is at stake especially at educational institutions which is supposedly to be the safest shelter, and that too during this tough time. As it is necessary to Protecting the basic rights of children and is of utmost concern as otherwise there will be a posting of a substantial threat to the future and this would leave a regressive impression.

It is the fundamental right of the children under Constitution of India to engage and study in an environment when he/ she feels safe from any kind of emotional or physical abuse and is free, further being argued in the petition.

The bench comprising of Justice Indira Banerjee and the Justice CT Ravikumar observed and sought responses of the Union and the States for guidelines for the educational institutions for the protection of the children and also for the enforcement of the fundamental rights of Children at the educational institutions.

It is essential to ensure the constitutional right to dignity of children provided under Article 21 of the Constitution of India, while protecting children against sexual abuse when they are exposed to predators, which is compromised, stated by the petitioner in the plea.

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IN MEDICAL NEGLIGENCE COMPENSATION CLAIMS, MCI FINDINGS REGARDING DOCTORS’ PROFESSIONAL CONDUCT HAVE GREAT RELEVANCE: SC

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The Supreme Court in the case Harnek Singh vs Gurmit Singh observed while considering medical negligence compensation claims that the findings of the report of Medical Council of India on professional conduct of doctors are relevant.

from the date of SCDRC order as compensation thereafter the court directed the Respondents to pay to the complainants a total amount of Rs. 25,00,000 with interest @ 6% per annum. the complainants have made out a case of medical negligence against Respondents 1 and 2 and are entitled to seek compensation on the ground of deficiency of service and the court hold that the decision of the NCDRC deserves to be set aside. in reversing the findings of the SCDRC and not adverting to the evidence on record including the report of the MCI, the court is of the opinion that the NCDRC has committed an error. The case of medical negligence leading to deficiency in his services, the above-referred findings of the MCI on the conduct of Respondent 1 leave no doubt in our mind that this is certainly, observed by the bench.

The bench further observed that he opinion and findings of the MCI regarding the professional conduct of Respondent 1 have great relevance while referring to the contents in the report of MCI.

The issue raises in the above-mentioned case is weather a professional negligence is established by the complainant as per the standards governing the duty to care of a medical practitioner on the part of Respondent As the NCDRC gave its decision without referring to the MCI finding the complainants/appellants submitted, in an appeal submitted by the Apex Court. this complaint got summarily disposed of and they filed appeals before Medical Council Of India The Ethics Committee of MCI held one doctor medically negligent and issued a strict warning to be more careful during the procedure and to be more diligent in treating and monitoring his patients during and after the operation he complainants had also made a complaint to the Punjab State Medical Council against the professional misconduct of the doctors, hospitals, surgeons, While the proceedings were pending before the SCDRC.

the complaint and two among the opposite parties were allowed by SCDRC to directly pay Rs. 15,44,000 jointly and severally and Rs. 10,000 as costs as the appeal was allowed by The National Consumer Disputes Redressal Commission of these opposite parties and set aside the order of the SCDRC holding that negligence was not proved by the complainants.

The bench comprising of Justice UU Lalit, justice S. Ravindra Bhat and the justice PS Narasimha also observed and contended the question of intention does not arise that in the proceedings for damages due to professional negligence.

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WHERE THE CLAIMS OF EVENTS HAVE BEEN SUCCESSFULLY ESTABLISHED BY THE PROSECUTION, SECTION 106 OF THE EVIDENCE ACT APPLIES TO CASES: SUPREME COURT

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The Supreme Court in the case Sabitri Samantaray vs State of Odisha observed here chain of events has been successfully established by the prosecution, from which a reasonable inference is made out against the accused, the Section 106 of the Indian Evidence Act applies to cases.

in light of Section 106 of the Evidence Act the High Court rightly observed that as how the deceased lost his life and the onus was now on the appellants to disclose further the court observed that the appellants have failed to offer any credible defense in this regard and it can be deduced that the entire sequence of events strongly point towards the guilt of the accused appellants the burden was on the appellants to prove it otherwise as once the prosecution had successfully established the chain of events.

in the light of the statements made by all the sets of witnesses, with such an intention when analyzed and the fatal injuries sustained by the deceased at the relevant place and time further the court contended while dismissing the plea that it certainly makes out a strong case that death of the deceased was indeed caused by the appellants. in establishing intention of the accused-appellants for the commission of the offence, the prosecution has succeeded, the Court notice.

whenever an incriminating question is posed to the accused and he or she either evades response, or offers a response which is not true, in a case based on circumstantial evidence then in the chain of events such a response in itself becomes an additional link, when a case is based on circumstantial evidence As Section 106 of the Evidence Act from its burden to establish the guilt of an accused is in no way aimed at relieving the prosecution. where chain of events has been successfully established by the prosecution, it only applies to those cases from which a reasonable inference is made out against the accused.

the Section 106 it merely prescribes that when an individual has done an act and in no way exonerates the prosecution from discharging its burden of proof beyond reasonable doubt Thereafter the onus of proving that specific intention falls onto 9 the individual and not on the prosecution. If the accused had a different intention than the facts are specially within his knowledge which he must prove, with an intention other than that which the circumstances indicate. As the Section 106 of the Evidence Act postulates that the burden of proving things which are within the special knowledge of an individual is on that individual. Although the Section in no way exonerates the prosecution from discharging its burden of proof beyond reasonable doubt, observed by the Bench as the said provisions Since it is all based upon the interpretation of Section 106 Evidence Act, the contentions of either

the bench comprising of CJI NV Ramana, Justice Krishna Murari and the justice Hima Kohli observed and contended whenever an incriminating question is posed to the accused and he or she either evades response or that which being offers a response is not true then such a response in itself becomes an additional link in the chain of event, in a case based on circumstantial evidence.

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A candidate has no legal right to insist that the recruitment process set in motion be carried to its logical end: SC

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The Supreme Court in the present case Employees State Insurance Corporation vs Dr. Vinay Kumar observed that the recruitment process set in motion be carried to its logical end as the candidate does not have a legal right to insist.

The bench directed the Corporation-appellants to take a decision regarding whether to complete the recruitment process, bearing in mind all relevant aspects within a period of two months, while allowing the appeal further it stated there is however no doubt from holding that the employer is free to act in an arbitrary manner.

A recruitment process which is set in motion be carried to its logical end candidate who has applied does not have a legal right to insist that Even in the select list may not clothe the candidate with such a right and that too even in the inclusion of a candidate.

A recruitment process carried to its logical end and the process set in motion, the candidate who applied does not have the legal right and thereafter the court further contended that the cardinal principle we must bear in mind is that this is a case of direct recruitment, observed by the bench.

The Court further said that it is quite likely that any candidate who may have being desirous of applying, may not have applied being discouraged by the fact that the advertisement has been put on hold and by agreeing with the applicant the court contended and said that the direction to conclude the proceedings within 45 days is unsupportable.

The recruitment process set in motion be carried to its logical end and the Candidate who has applied does not have a legal right to insist the recruitment process.

The ground raised by the appellants for not proceeding with the procedure of direct recruitment is untenable, the respondent contended before the court and on the other hand on account of certain developments which took place, there may really be no need to fill up the post of Associate Professor and the respondent may not have a right as such, the appellant contended before the Apex Court.

The High Court which dismissed the writ petition filled by the Corporation and it directed the Corporation to conclude the process positively within a period of 45 day. the Corporation filed appeal before the Apex Court, Aggrieved with this direction.

The bench comprising of Justice KM Joseph and the justice Hrishikesh Roy observed that Even inclusion of a candidate in the select list may not clothe the candidate with such a right and it does not mean that the employer is free to act in an arbitrary manner, the bench clarified.

The recruitment process set in motion be carried to its logical end and the Candidate who has applied does not have a legal right to insist the recruitment process.

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