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CONSUMER PROTECTION UPDATE: ACCOUNTABILITY FOR LOST DOCUMENTS
In a significant development in the realm of consumer protection, the Hon’ble National Consumer Disputes Redressal Commission (NCDRC) in the matter of Manoj Madhusudhanan v. ICICI Bank Ltd (2023 SCC Online NCDRC 323) recently delivered a ruling in a case that has far-reaching implications for banks and consumers alike. Background: Manoj Madhusudhanan, the complainant had applied for a housing loan with ICICI Bank Limited and entrusted the bank with the original title documents of a property as collateral. The documents were intended to be transferred to the bank's central facility via a courier service, Blue Dart Express. However, during transit, the documents went missing, sparking a legal battle that raised several critical issues. Issues: The case raised a series of complex issues, ranging from liability and compensation to the extent of financial loss suffered by the complainant. The key issues are elaborated hereunder: Whether it was ICICI Bank or the courier service i.e., Blue Dart Express, who was responsible for the safekeeping of these crucial documents? Whether the loss of these documents constituted a "deficiency in service" on the part of ICICI Bank, affecting his clear title to the property, and potentially diminishing its value should he decide to sell it or use it as collateral in the future? Whether the NCDRC has jurisdiction to deal with the present case and what is the appropriate compensation to be awarded to the complainant for his losses and mental agony? Held: The NCDRC rendered a decisive verdict on these issues. The NCDRC ruled that ICICI Bank was primarily responsible for the custody and security of the original title documents of the property. It emphasized that the deficiency in service was evident and that the complainant's claim for compensation was legitimate. The NCDRC acknowledged the complainant's argument that the loss of the original documents had compromised his legal title to the property. It was determined that this fact warranted compensation and indemnification against any future losses he might incur. While the complainant had initially sought Rs 5 crore in compensation, the NCDRC disagreed with this amount, and after factoring in the compensation previously awarded by the banking ombudsman, directed ICICI Bank to pay Rs 25 lakh as compensation. Additionally, ICICI Bank was instructed to issue an indemnity bond and cover litigation costs of Rs 50,000. This landmark ruling has significant implications for both financial institutions and consumers. Here are some key takeaways and comments regarding the case. The ruling underscores the importance of consumer protection in financial transactions. It establishes that banks have a duty to safeguard the original documents entrusted to them by customers and should be held accountable for any loss. The case provides much-needed legal clarity regarding the liability of banks when entrusted with important documents. The ruling's emphasis on "deficiency in service" as a valid ground for compensation sets a strong precedent. It reaffirms the rights of consumers in financial transactions, especially in cases involving the loss or mishandling of important documents. Consumers can pursue remedies beyond the banking ombudsman's decisions, as indicated in the ruling. The case highlights the importance of jurisdictional questions in consumer protection cases. It clarifies that the NCDRC's jurisdiction is based on the value of goods or services and compensation claimed, rather than the total value of the property itself. MHCO Comment: In conclusion, the NCDRC's ruling in the ICICI Bank case serves as a landmark decision that upholds consumer rights and places the onus on banks to ensure the safety of documents entrusted to them. This ruling carries significant implications for the banking industry, customer relations, and the broader realm of consumer protection in India. It reaffirms the importance of legal safeguards in financial transactions and underscores the need for accountability and compensation in cases of service deficiency. Authors: Purvi Asher - Partner | Bhushan Shah - Partner | Shreya Dalal - Associate Partner | Daksha Kasekar - Associate
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MCA UPDATE | MANDATORY DEMATERIALISATION OF SECURITIES OF PRIVATE COMPANIES
The Ministry of Corporate Affairs (MCA) on 27 October 2023 notified an amendment to the Companies (Prospectus and Allotment of Securities) Second Amendment Rules, 2023 (Amendment Rules 2023), which affects all companies, but majorly the private companies. The Amendment Rules 2023 introduces two significant changes: (i) concerning the bearer of share warrants under the erstwhile Companies Act, 1956, and (ii) mandatory dematerialisation of securities for all private companies excluding small companies. The Amendment Rules 2023 mark a significant milestone in India's corporate regulatory landscape. These rules introduce crucial changes aimed at enhancing transparency, efficiency, and accountability in the issuance and management of securities for both public and private companies. Rule 9 Amendment for Public Companies: Enhancing Share Warrants The Amendment Rules 2023 focuses on public companies that had previously issued share warrants under the erstwhile Companies Act, 1956. Here are the key provisions: Within 3 months of the Amendment Rules 2023's implementation, public companies must inform the Registrar about the details of these share warrants in Form PAS-7; Within 6 months, these public companies must request share warrant holders to surrender them for dematerialization. For this, the company has to place a notice for the bearers of share warrants in Form PAS-8 on their website. The company also has to publish the notice in a newspaper in the vernacular language which is in circulation in the district and in an English Newspaper widely circulated in the state in which the company’s registered office is situated. Non-compliance results in conversion and transfer to the Investor Education and Protection Fund established under Section 125 of the Companies Act, 2013. Rule 9B: Private Companies’ Mandatory Dematerialization Rule 9B, a new addition, significantly impacts private companies that do not qualify as small companies: The rules apply to private companies, excluding small companies, and extend to various categories, including foreign subsidiaries, domestic subsidiaries, Section 8 companies (non-profit companies), domestic holding companies, and companies governed by special acts. The Private companies not qualifying as small companies, according to their audited financial statements for the financial year ending after 31 March 2023, must comply within 18 months of that financial year's closure (i.e., by 30 September 2024). The private companies subject to these rules must ensure the dematerialization of securities held by promoters, directors, and Key Managerial Personnel before any securities-related transactions i.e., buyback, issue of bonus shares, and/or rights offer. It's important to note that government companies are exempt from these Amendment Rules 2023. It is important to note that a small company is a company that is not a public company and has a paid-up share capital equal to or below Rs 4 crore or such a higher amount specified not exceedingly more than Rs.10 crores. MHCO Comment: The Amendment Rules 2023 signify a pivotal development in India's corporate regulatory landscape. They seek to promote transparency, efficiency, and accountability in the issuance and management of securities. Timely compliance with the specified timelines and requirements is essential for companies to effectively adapt to these changes, avoid penalties, and secure their operations in the evolving regulatory environment. Historically, private companies often saw shares registered under untraceable or unidentified names, which raised concerns about black money. With the mandatory dematerialization of shares, the government aims to address this issue. Authors: Bhushan Shah - Partner | Shreya Dalal - Associate Partner | Daksha Kasekar - Associate
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LEGAL UPDATE | BOMBAY HIGH COURT'S STANCE ON INDIVIDUAL TENEMENT OCS
The Division Bench of Hon’ble Bombay High Court, in the case of Najma Aslam Merchant versus The State of Maharashtra held that there is no concept of a flat-wise Occupancy Certificate (“OC”). OCs are issued to the part or whole of a built structure i.e., either a whole building or up to a specified floor. Brief Facts: The Petitioner herein had filed a Writ Petition before the Bombay High Court to facilitate the redevelopment of building known as Quettawala Residency wherein she owned two flats on the 7th floor. After filing the Writ Petition the parties agreed to settle their dispute by entering into Consent Terms on 16 March 2023. As per the Consent Terms, the Respondent Nos. 7 to 10 were required to apply for the OC in connection with the new building by 20 June 2023 and in the event the Respondent Nos. 7 to 10 failed to obtain the OC they would be liable for payment to Petitioner. Since, the OC was not received by 20 June 2023, the Petitioner filed a Contempt Petition before the Hon’ble Bombay High Court alleging disobedience of an order of the High Court. Contention of the Parties: The Petitioners contented that the Respondent Nos. 7 to 10 failed to obtain the OC by 20 June 2023. On failure of the Respondent Nos. 7 to 10 to obtain OC, no amount received by the Petitioner. The Respondents Nos. 7 to 10 argued that the there is no liability to pay because an OC for two flats and only two flats was obtained on 22 June 2023. Held: The Division Bench of Bombay High Court rejected the submission made by the Respondents Nos. 7 to 10 holding that there is no concept of a flat-wise OC. OCs are issued for either part or whole of the build structure i.e., either a whole building or up to a specified floor. The Court further held that it would inconceivable that there could be water supply to two flats on the 7th floor but not to other flats on that floor nor to any of the flats above or below the 7th floor. The Division Bench held that the Municipal Corporation of Greater Mumbai (“MCGM”) must not be misled by any individual into granting certificates contrary to the law. The Court further held that it is always open to any officer of the MCGM to refuse to grant any such OC which is obtained for a particular floor. The Court further held that it is not open to the developer to go to MCGM citing the consent terms and the order of the High Court and demand issuance of the OC in a manner not contemplated by law. The Court concluded that the concept of a part OC or an OC applied to the building and not to individual tenements in the building. MHCO Comment: The division bench has made an important decision by explaining that a part Occupancy Certificate (OC) cannot be given for individual tenements. They specifically directed the municipal authorities not to approve requests for OCs that apply only to a specific floor. This decision is a positive move to protect individuals who have faced difficulties with developers. This order is a welcome step to ensure that individuals are not harassed by delays in obtaining OCs for their homes. Authors: Bhushan Shah - Partner | Hasti Parekh - Associate
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LEGAL UPDATE | INCREASE IN PECUNIARY JURISDICTION OF CITY CIVIL COURTS IN BOMBAY
The Government of Maharashtra acting through Law and Judiciary Department on 16 January 2024 notified an amendment to Section 1(2) of the Bombay City Civil Court Act, 1948 whereby pecuniary jurisdiction of the City Civil Court has been increased from Rs 1 crore to Rs 10 crore having effect from 28 January 2024. On 20 November 2023, the Governor of Maharashtra proposed to carry out the amendment to the Bombay City Civil Court Act, 1948 (“Act”) whereby it was proposed that the pecuniary jurisdiction of the City Civil Courts at Bombay to be increased from Rs 1 Crore to Rs 10 crores. On 16 January 2024, the Government of Maharashtra through its Law and Judiciary Department notified increase in pecuniary jurisdiction of the City Civil Courts at Bombay which shall be effective from 28 January 2024. The increase in the pecuniary jurisdiction of the City Civil Courts at Bombay will largely reduce the burden from the Bombay High Court. It would further reduce the backlog of the cases lying in the Bombay High Court and will largely assist the judiciary system for quick disposal of the cases. Additionally, all the cases filed before the Bombay High Court which are now below the pecuniary jurisdiction of Rs 10 crores will be transferred to City Civil Courts at Bombay. However, the transfer of cases will take substantial amount of time and for initial few months there is a high possibility of the pleadings being not available in the appropriate Court due to non-receipt of papers on time. Further, matters in which the trial has started would have to be now heard a fresh. It will also be pertinent to see whether the infrastructure of the City Civil Court would be able to cope up with such a huge influx of matters especially in terms of upkeeping the records, both electronically as well as physically. Additionally, such transfer of cases would only cause further chaos and would render delay in justice to the public at large. Authors: Bhushan Shah - Partner |  Aakash Mehta - Associate
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LITIGATION UPDATE: STAY ORDERS WILL NOT BE AUTOMATICALLY VACATED AFTER 6 MONTHS
The case of High Court Bar Association Allahabad vs The State Of Uttar Pradesh, decided on 29 February 2024, presents a nuanced examination of key legal issues surrounding the automatic vacation of interim orders issued by High Courts and the directive to decide pending cases with interim stay orders on a day-to-day basis and within a fixed period. This landmark case stems from the need to reconsider the Asian Resurfacing judgment by a larger Bench, which addressed the interference of High Courts with charge-framing orders under the Prevention of Corruption Act. The decision to revisit the Asian Resurfacing ruling follows a series of critical observations from the judiciary, including remarks by a three-judge bench of the Allahabad High Court and subsequent reservations expressed by the Supreme Court regarding the potential miscarriage of justice resulting from automatic stay vacation directives. Background and Facts The Asian Resurfacing judgment challenged the conventional understanding of charge-framing orders, labelling them neither interlocutory nor final. Consequently, a larger Bench was tasked with reassessing the validity of the Mohan Lal Magan Lal Thacker case, sparking debates on the broader implications of this decision. Issues at Hand The crux of the matter lies in two pivotal questions: (a) Can the Supreme Court, under Article 142 of the Constitution, order the automatic vacation of interim orders issued by High Courts, staying proceedings after a certain period? (b) Can the Supreme Court, under Article 142 of the Constitution, direct High Courts to decide pending cases with interim stay orders on a day-to-day basis, and within a fixed period? Analysis The Court delved into the fundamental principles of natural justice, arguing that interim orders cannot be automatically vacated solely due to the passage of time. It emphasized the necessity of hearing all affected parties before modifying or vacating interim relief, highlighting the potential injustice of such actions. Furthermore, the Court scrutinized the fairness of immediately setting trial dates after six months without formal vacation of stay orders, cautioning against prejudicing litigants' rights. Arguments Presented For instance, Advocate for the Respondent, referenced precedent cases, emphasizing the importance of addressing significant questions only within the context of a proper legal dispute. Conversely, Advocate for the Appellant stressed the overlooked aspect of potential delays in full hearings, arguing against the automatic vacation of stay orders without judicial scrutiny. Court's Ruling The Court meticulously analysed the implications of prolonged stay orders on trial proceedings, highlighting the adverse effects on the administration of justice, especially in corruption cases. It asserted the need for accountability and restraint in granting stays, cautioning against potential miscarriages of justice. Moreover, the Court underscored the importance of balancing equity and procedural fairness while exercising judicial powers under Article 142 of the Constitution. Court’s Conclusion In conclusion, the Supreme Court reiterated the importance of aligning High Court jurisdiction with legislative intent for speedy trial disposal. It emphasized that challenges to charge orders should be rare and solely aimed at rectifying clear jurisdictional errors. Moreover, the Court advocated for expeditious case resolution, ideally within two to three months, to prevent undue delay or injustice. Ultimately, the overarching goal is to ensure fairness in judicial proceedings without compromising fundamental rights or procedural integrity. In overturning the earlier ruling, the Supreme Court has reaffirmed the fundamental principles of justice and fairness in legal proceedings. By emphasizing the need for judicial discretion and reasoned decision-making, the court has upheld the integrity of the legal system and safeguarded the rights of litigants. MHCO Comment: The conclusion drawn by the Court was that the stay granted in any proceedings would not automatically cease after a specified period, unless an application is filed by the opposing party and decided upon through a “speaking order” adhering to the principles of natural justice. The Court reflected on the irony that in the pursuit of justice, there are instances where injustice inadvertently occurs. The case of Asian Resurfacing serves as a vivid illustration of this phenomenon. The reversal of the Asian Resurfacing ruling represents a significant development in India's legal landscape, underscoring the judiciary's commitment to upholding constitutional principles and ensuring equitable access to justice for all.
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IPR UPDATE | JURISDICTION OF A HIGH COURT IN DECIDING AN APPLICATION UNDER SECTION 57 OF TRADE MARKS ACT, 1999
A single bench of the Delhi High Court, in a recent judgment in a batch of five petitions including The Hershey Company vs. Dilip Kumar Bacha and others referred the question of jurisdiction concerning rectification and cancellation petitions under the Trade Marks Act, 1999 (Act) under section 57 of the Act to a larger bench in view of the conflicting judgment passed by a co-ordinate bench in the matter of Dr. Reddy’s Laboratories Ltd. v. Fast Cure Pharma held that the word ‘High Court’ in the Act would include even those High Courts within whose jurisdiction the dynamic effect of the registration is felt. The present case raised a significant question as to which High Court has the jurisdiction to hear cancellation/rectification petitions under section 57 of the Act. The pertinent question which was referred to the larger bench, is whether cancellation petitions under the Act can be filed only before a High Court where the Trade Marks Registry has granted the registration, or whether such applications can also be filed before the High Courts within whose jurisdiction the ramifications of registration are witnessed by the Petitioner. Contention of the Parties: The Petitioners discussed the term ‘High Court’ and analysed various acts which define the term “High Court” in respect of the jurisdiction ambiguity for rectification under section 57 of the Act, this judgment discusses various acts that define the term “High Court” as under: Trade and Merchandise Marks Act, 1958 – wherein the Jurisdictional powers of the High Court are defined; Trade Marks Act, 1940 - wherein while the term ‘High Court’ is defined, it lacks clarity with respect to jurisdiction; and Trade Marks Act, 1999 - wherein the term ‘High Court’ is not defined.   The Petitioners also submitted that the jurisdiction of the High court cannot be restricted to five Courts as it will go against the ethos of the Commercial Courts Act, 2015 and will also cause grave inconvenience and injustice. The Petitioners heavily relied on the judgement passed in the case of Girdhari Lal Gupta v K. Gian Chand Jain (“Girdhari Lal Gupta”) and submitted that all such High Courts where the dynamic effect of the registration is witnessed would have jurisdiction to adjudicate on the dispute. The Respondents submitted that the reliance placed upon the Judgment of Girdhari Lal Gupta is incorrect as the same pertains to the Designs Act, 1911. It was further submitted that the definition of 'Appropriate office' in section 3 of the Act has more than one interpretation and in such case the provisions should be not be interpreted differently for registrar and High Court and hence cannot be interpreted in any manner that might cause utmost conundrum. Moreover, in reference to section 97 of the Act, when a rectification petition is filed and the order is passed the same would be executed by the Registrar and therefore the petition ought to be filed before the forum that can exercise jurisdiction over the said Registrar. Further the Respondents also argued that any confusion with jurisdiction might lead to multiplicity of suits and the two forums should not decide on the same matter as it would lead to conflict of decisions. Held: The Hon’ble Court held that it was unable to subscribe to the view taken by the Single Judge in Dr. Reddys Laboratories Ltd. v. Fast Cure Pharma and in view of the significance of the issues raised including the applicability of the law laid down by Girdhari Lal Gupta in the context of proceedings under the Act, the Hon’ble Court was pleased to refer the matter to a larger bench for determination of the following three queries: Whether the decision of the Full Bench in Girdhari Lal Gupta, rendered under the Designs Act, 1911, would be applicable in the context of the Trade Marks Act, 1999 as amended by the Tribunal Reforms Act, 2021, for determining jurisdiction of a High Court under Section 57 of the Act? Whether the jurisdiction of the High Court under Section 57 of the Act would be determined on the basis of the Appropriate office of the Trade Mark Registry, which granted the impugned trade mark registration? Whether the expression ‘the High Court’ can be differently construed in Sections 47, 57 and 91 of the Act? MHCO Comment: The upcoming verdict by the larger bench of the Delhi High Court is a welcome move in providing much needed clarity on matters pertaining to trademarks cancellation. The decision by the single bench of referring such a pivotal question of law to a larger bench is deemed necessary to ensure thorough adjudication and to give quietus to such important matters.
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SENIOR CITIZENS ACT CANNOT BE USED FOR SETTLING PROPERTY DISPUTES
In a recent ruling, the Bombay High Court reaffirmed the rights of senior citizens in property disputes in the matter of Nitin Rajendra Gupta vs Deputy Collector, Mumbai and others setting a significant precedent in the realm of family law and senior citizens’ rights. The case revolves around the cancellation of gift deeds given by a father (widower) to one of the sons by a Maintenance Tribunal, underscoring the delicate balance between familial obligations and legal protections for the elderly. Background: The Petition was filed by the son (Petitioner) of the Respondent No 2 (father) challenging the Order passed by the Maintenance Tribunal under the provisions of Sections 23(1) of Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (“Act”). Vide this Order, the Gift Deeds executed by Respondent No 2 (father) in favour of his son (Petitioner) were set aside. Essentially, the case stemmed from a dispute over four gift deeds in respect of the immovable property made by the father, transferring his share of flats in Mumbai to one of his three sons i.e., the Petitioner. The father was not the 100% owner in respect of any of the flats. The father was rendered homeless and was forced to reside at Surat with his other son despite having multiple houses in Mumbai. He had no other source of income or property and various shares, mutual funds, PPF and jewellery were also transferred by the son in his name/ custody. The Maintenance Tribunal vide an Order dated 31 October 2022 had nullified the gift deeds executed on 21 June 2019 and 25 September 2020, ordering the son and his family to vacate two flats in Kandivali, Mumbai. This decision, made on 31 October 2022, sparked a legal battle between the parties which ultimately reached the High Court. On April 10, Justice S V Marne of the Bombay High Court delivered a verdict observing that the Act is not a tool to nullify a valid gift deed. Issues The crux of the matter lies in Section 23(1) of the Act, a legislation aimed at safeguarding the interests of elderly individuals. This provision empowers a tribunal to revoke a gift deed if it is contingent upon the recipient's obligation to provide basic amenities and physical needs of the donor. The ‘tribunal's decision, in this case, hinged on whether the gift deeds implied a duty to provide basic amenities for the elderly father, notwithstanding any explicit conditions. Held: At the heart of the legal debate is the interpretation of the Act and its application in property disputes within families. The court was of the view that considering the broad objective behind enacting the provisions of Section 23(1) of the Act, which is to ensure provision of basic amenities and basic physical needs to senior citizens, the Maintenance Tribunal ought to have passed an order in such a manner that the father is provided basic amenities and basic physical needs rather than revocation of the gift deeds. However, as argued by the Counsel for the Petitioner, interpreting Section 23(1) of the Act to require provisions for basic needs in transfer documents could exclude many transactions from the ambit of Section 23(1) of the Act. Senior citizens may not be aware of this requirement, leaving their protection dependent on how the documents are drafted. This could lead to disparities in application, as the decision rests with the drafter, potentially undermining the law's intent. The Bombay High Court also opined that the provision of Section 23(1) of Act cannot be used as a machinery for settling property disputes between the heirs of senior citizens. However, unfortunately in many cases, it is observed that such a course of action is taken by the parties. The Court observed that the Maintenance Tribunal has to ensure that the provision is not misused by children who are denied share in the immovable properties by seeking to get gift-deeds annulled by filing application through senior citizens. Section 23(1) of the Act empowers tribunals to revoke gift deeds if parental neglect is evident. However, the basic idea behind this provision is not to nullify validly executed documents of transfer but to ensure that senior citizens are restored the basic need of residence in the house which he/she gifts in favour of his/her children. At the end, the Hon’ble Court directed the Petitioner to provide the father residence in one of the flats in addition to payment of Rs. 25,000/- per month towards maintenance. MHCO Comment: The verdict serves as a reminder for adherence to the principles enshrined in Senior Citizens Act. It underscores the need for sensitivity and compassion in addressing the needs of aging parents within the framework of law. Moving forward, this landmark ruling will influence future judgments and promote a more equitable understanding of responsibilities towards senior citizens in Indian society. It will also act as a deterrent for children seeking to approach courts through their parents to settle property disputes.
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MHCO UPDATE | CUSTODIANS APPOINTED FOR LIVING WILLS
Background: Back in 2018, the Supreme Court of India brought in the concept of “Living Wills” in India by its decision in the matter of Aruna Shanbaug v Union of India, thereby supplementing its ruling to include the right to die with dignity within the scope of Article 21 of the Constitution of India. In simple words, a living will is a legal document that allows the executor thereof to express their wishes regarding medical treatment and end-of-life care if they are ever in a situation where they are unable to communicate their preferences. It's a roadmap for the named guardian or close relative and their medical providers to follow and ensure that their wishes are respected, even if they are unable to express them at the time. In this regard, the Supreme Court laid down broad guidelines, inter alia stating that a living will must be countersigned by a Judicial Magistrate and be shared with the guardian of the executor, family physician (if any), and designated local government officer or the jurisdictional Municipal Corporation, for official records. Later in 2023, acknowledging the complexity of the process, the Hon’ble Supreme Court simplified the process by mandating that living wills are to be signed in front of witnesses and attested by a notary or gazetted officer, instead of having it countersigned by a Judicial Magistrate, and further mandated that the government shall appoint a competent authority as custodian (“2023 SC Directive”). However, making the provision a bare skeleton, the state failed to appoint such a custodian until recently. Developments in the Maharashtra: One Mr Nikhil D Datar approached the Hon’ble Bombay High Court in PIL 3 of 2024 [Prof Dr Nikhil D Datar v The State of Maharashtra through the Chief Secretary & Ors] (“PIL”), seeking implementation of the 2023 SC Directive that simplified the guidelines of passive euthanasia and also sought that the state government and the BMC be directed to appoint a custodian for the same. In response to the said PIL, the Maharashtra Government filed an affidavit before the Bombay High Court submitting that they have appointed 417 custodians as per the guidelines of the Hon’ble Supreme Court for the implementation of Living Wills. 29 of these custodians have been appointed in Mumbai, Pune, Thane and Navi Mumbai Municipal Corporations, and the rest of the 388 custodians have been appointed in the City Councils and Nagar Panchayats in the state of Maharashtra. Alterations in the procedure for executing a Living Will: Prior to the 2023 SC Directive, the process of executing Living Wills was overly complex with elaborate bureaucratic procedures in place to prevent abuse by unscrupulous individuals seeking to exploit the patient’s assets. The Living Will had to be signed by the person making the advance declaration in the presence of two witnesses and in the presence of the concerned Judicial Magistrate of First Class (JMFC), who was also required to countersign the said Living Will. Further, the JMFC’s office had to preserve a physical and a digital copy of the Living Will, and the JMFC was made responsible for ensuring that the Living Will was enforced once the writer of the instrument became incapacitated. Further, the treating physician of the writer of the Living Will was mandated to confirm its authenticity with the JMFC before acting upon it. The process as it stood before the 2023 SC Directive can be understood in detail by referring to our article. In order to ease the process of executing Living Wills, the Hon’ble Supreme Court inter alia made the following alterations: The requirement to have a JMFC countersign the Living Will has been dispensed with, rather the Living Will is now to be attested in the presence of two witnesses and before a notary or Gazetted Officer. Further, the JMFC is no longer mandated to retain copies of the Living Wills. The responsibility of forwarding a copy of the Living Will to the guardian(s) and close relative(s) and the family physician mentioned therein has been shifted from the JMFC to the executor. Further, it is mandated that the treating physician, shall ascertain the genuineness and authenticity of the Living Will from the custodian of the document, instead of from the JMFC.   MHCO Comment: The Supreme Court passed the 2023 SC Directive intending to reduce the red tape surrounding the principle of Living Wills in India. However, it was a year later that the Maharashtra Government paid heed to the directions of the Apex Court and appointed custodians in the various government departments. It is certain that the appointment of said custodians breathes life into the directions of the Supreme Court to introduce living wills in India, which remained ineffective up until now. However, it remains to be seen whether the custodians so appointed from within the bureaucratic structure, ease the process of making Living Wills.
LIFE AT MHCO