Oxford University Press Law Yearbooks Available Online

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Since the start of January 2011 the law yearbooks from Oxford University Press, previously available only in print, have become available online as well. This includes all volumes since 1996 but not the most recent ones which only published in December 2010.
To launch this initiative they are making all of this content freely available until the end of February 2011. To view, browse, download and search the material click on these links:
Courtesy: Opinio Juris

Diplomatic Immunity -More of misuse than use : Guest Post by Shruti Srivastava, NUALS

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Senior Indian Diplomat Anil Verma faces allegations of attacking his wife after a heated argument. Fearing threat to her life, his wife Paromita, has gone into hiding with their five year old son.
Mr. Anil Verma, who is the third senior diplomat in the High Commission, had reportedly sought diplomatic immunity from prosecution after being questioned by the police. The Indian Government has called him back and says that charges will be probed according to the laws of the land. The United Kingdom government is not satisfied with this step and is asking for the diplomatic immunity of him to be waived. The Ministry of External Affairs refused the same and said that diplomatic immunity cannot be waived just on the grounds of domestic violence.
This issue has opened a Pandora’s Box. It has brought forth the history of misuse of iimmunity given to diplomats and the sheer abuse of human rights by the highly respected diplomats of the world. The term ‘Domestic violence’ carries with it the hopes and grievances of millions of women all over the world. The decision taken by the Indian Government would weigh its position in terms of humanity.
Diplomatic immunity is a concept in international law where foreign government officials are not subject to the jurisdiction of local courts and other authorities. The history of diplomatic immunity dates back to the times of Persian King Darius the Great and Athenians, when the ill-treatment of heralds led to wars. The Second Punic War and Kandalur War are results of the same. Genghis Khan and Mongols strongly vowed for the rights of the diplomats.
Modern diplomatic immunity evolved when the British Parliament guaranteed diplomatic immunity to foreign ambassadors in 1709. The Vienna Convention on Diplomatic Relations of 1961 and the Vienna Convention on Consular Relations of 1963 codified most modern and diplomatic and consular practices, including diplomatic immunity. More than 160 nations are parties to these treaties. The level of immunity varies with the ranks of the officers. It is also given that diplomatic agents and members of their immediate families are immune from all criminal prosecution and most civil law suits in the host country. But they are not exempted from the same in their home countries.
In London allegations of drink-driving, shoplifting, robbery and even human trafficking have been leveled at foreign diplomats. It is reported that people are trafficked into Britain and are physically and sexually abused, house bound, and treated like slaves. In India, instances range from the killing of driver by the son of Senegalese ambassador to the slapping of a senior journalist by the wife of a diplomat.
‘Diplomatic immunity has become diplomatic impunity’, Geoffrey Robertson, QC, one of Britain’s foremost lawyers, told the BBC. He suggested that diplomats should be tried by British courts and or have their cases referred to the International Criminal Court of Justice before a British judge.
In the case of Mr. Anil Verma, the British Government said that it does not tolerate foreign justice breaking the law. It would be interesting to see how the Indian Government treats a person who has violated somebody’s natural right on a world stage.
Would it accept to give natural justice to the woman harassed or be adamant to its decision in the name of national pride? It is a situation which is turning out to be a litmus-test for the government . the ball now lies in our court!

Binayak Sen Case - Paradigm to injustice: Guest Post by Arya J. Nair, NUALS

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Binayak Sen case proves that the justice delivery system prevailing in our country is so pitiable that it falls short in ensuring that justice is done to the citizens.
In this case, Dr. Binayak Sen, the Vice president of the Peoples’ Union for Civil Liberties and a well known human right activist, was sentenced to life imprisonment on the grounds of sedition. From the evidences adduced, the court concluded that Mr. Sen had links with naxalites. However, mere links with naxalites is not a sufficient ground for awarding life imprisonment, but only imprisonment for a maximum term of 5yrs. Sen was convicted on the basis of few letters, which is said to have been sent among Mr. Sen and Mr. Sanyal, and affidavits and testimonies filed by the witnesses. The most interesting fact is that the witnesses were primarily constituted by police men. Moreover, the facts of the case prove that evidences against Mr. Sen were also not so strong. What is worth noting here is that the evidence presented before the Court was, by no stretch of imagination, conclusive enough to prove his conviction. Unfortunately, the Judges did not give any credence to the insufficiency of evidence in the matter while awarding him with the sentence. A cursory glance at the Judgment is sufficient to prove this surprising disregard for and unwillingness to accept the value of evidence in a criminal trial.
Binayak Sen is a well known public figure who is known for his contributions as a doctor and a human rights activist, who has dedicated years of his life in providing medical care to the poor and helpless. He has been honoured with many awards at national and international levels in recognition of the same. He is the recipient of the 2008 Johnathan Mann Award for Global Health and Human Rights. Dr. Binayak Sen has been one of the most vocal critics of the Chattisgarh government’s policy against the Naxal movement, and the role of the Salwa Judum in committing violations of human rights against villagers.Mr. Sen’s fame as a global figure was evident from the waves of protest which lashed in different parts of the world when he was arrested. International institutions like Amnesty International, the British Medical Association, and even the British House of Commons and several leading human rights activists and international personalities including Amartya Sen and Noam Chomsky criticized the judgment in this case and demanded for the release of Dr. Sen.
The verdict in the Binayak Sen case questions the importance attached to the fundamental freedom of speech and expression in a democratic country like India. Use of anti-sedition laws to annihilate genuine voices against human rights violations is unacceptable in a democratic state. Stalking those who voice genuine grievances against the state by employing judicial process is excruciating. When many corrupt politicians are still ruling our country scoffing at the judiciary and escaping the far reaching clutches of law, it is highly shameful that justice is denied to a deserving person like Binayak Sen. The Binayak Sen verdict is a perfect example of gross violation of law and human rights and it underscores the incapability of the existing judicial system to render required justice to the citizens.

Best of 2010 in STRIPPED LAW

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Dear Readers,


As per the available statistics we have picked the top five posts of 2010 in STRIPPED LAW


1. All India Bar Exam- A Critique: By Saritha Thonoor


2. Scope of C.I.F Contracts: By Manjula R. S.


3. History of Legal Education in India: By Adv. Devadas T.M.


4. Freedom of Speech and Arundhati Roy Episode: From the perspective of Law “As Posited” and Law as “It ought to be”: By Murali Krishnan: By Murali Krishnan

5. Priyadarshini Mattoor Case Verdict- Some Random Thoughts on the Apex Court’s Verdict: By Saritha Thonoor


Keep visiting STRIPPED LAW !


Regards,
Raghul Sudheesh
Founder-STRIPPED LAW

India, largely a country of immigrants

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A Supreme Court judgment projects the historical thesis that India is largely a country of old immigrants and that pre-Dravidian aborigines, ancestors of the present Adivasis, rather than Dravidians, were the original inhabitants of India.

If North America is predominantly made up of new immigrants, India is largely a country of old immigrants, which explains its tremendous diversity. It follows that tolerance and equal respect for all communities and sects are an absolute imperative if we wish to keep India united. If it was believed at one time that Dravidians were the original inhabitants of India, that view has since been considerably modified. Now the generally accepted belief is that the pre-Dravidian aborigines, that is, the ancestors of the present tribals or Adivasis (Scheduled Tribes), were the original inhabitants. This is the thesis put forward in a judgment delivered on January 5, 2011 by a Supreme Court of India Bench comprising Justice Markandey Katju and Justice Gyan Sudha Misra . This historical disquisition came in Criminal Appeal No. 11 of 2011, arising out of Special Leave Petition No. 10367 of 2010 in Kailas & Others versus State of Maharashtra TR. Taluka P.S .

The appeal was filed against a judgment and order passed by the Aurangabad Bench of Bombay High Court. The Supreme Court Bench saw in the appeal a typical instance of how many Indians treat the Scheduled Tribes, or Adivasis. The case related to Nandabai, 25, belonging to the Bhil tribe, a Scheduled Tribe in Maharashtra. She was beaten, kicked and stripped, and then paraded naked on the village road, over an alleged illicit relationship with a man from an upper caste. The four accused were convicted by the Additional Sessions Judge, Ahmednagar, under different Sections of the Indian Penal Code and sentenced to rigorous imprisonment for six months, one year and three months in three instances and to pay a fine in each. They were convicted under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced to rigorous imprisonment for one year and a fine. But the High Court acquitted them of the charges under the SC/ST Act, while confirming the convictions under the IPC provisions. Each was directed to pay Rs. 5,000 to the victim.

Excerpts from the Supreme Court judgment (the full text is at www.thehindu.com).

The Bhils are probably the descendants of some of the original inhabitants of India known as the ‘aborigines' or Scheduled Tribes (Adivasis), who now comprise only about eight per cent of the population of India. The rest, 92 per cent, consists of descendants of immigrants. Thus India is broadly a country of immigrants, like North America.

While North America (USA and Canada) has new immigrants who came mainly from Europe over the last four or five centuries, India is a country of old immigrants in which people have been coming in over the last ten thousand years or so. Probably about 92 per cent of the people living in India today are descendants of immigrants, who came mainly from the North-West, and to a lesser extent from the North-East. Since this is a point of great importance for the understanding of our country, it is necessary to go into it in some detail.

People migrate from uncomfortable areas to comfortable areas. This is natural because everyone wants to live in comfort. Before the coming of modern industry there were agricultural societies everywhere, and India was a paradise for these because agriculture requires level land, fertile soil, plenty of water for irrigation and so on, which were in abundance in India. Why should anybody living in India migrate to, say, Afghanistan, which has a harsh terrain, rocky and mountainous and covered with snow for several months in a year when one cannot grow any crop? Hence almost all immigrations and invasions came from outside into India (except those Indians who were sent out during British rule as indentured labour, and the recent migration of a few million Indians to the developed countries for job opportunities). There is perhaps not a single instance of an invasion from India to outside India.

India was a veritable paradise for pastoral and agricultural societies because it has level and fertile land, with hundreds of rivers, forests, etc., and is rich in natural resources. Hence for thousands of years people kept pouring into India because they found a comfortable life here in a country which was gifted by nature.

As the great Urdu poet Firaq Gorakhpuri wrote: Sar Zamin-e-hind par aqwaam-e-alam ke firaq/ Kafile guzarte gae Hindustan banta gaya (“In the land of Hind, the caravans of the peoples of the world kept coming in and India kept getting formed”).

Who were the original inhabitants of India? At one time it was believed that the Dravidians were the original inhabitants. However, this view has been considerably modified subsequently, and now the generally accepted belief is that the original inhabitants of India were the pre-Dravidian aborigines, that is, the ancestors of the present tribals or Adivasis (Scheduled Tribes).

The Cambridge History of India (Volume I), Ancient India, says:

“It must be remembered, however, that, when the term ‘Dravidian' is thus used ethnographically, it is nothing more than a convenient label. It must not be assumed that the speakers of the Dravidian languages are aborigines. In Southern India, as in the North, the same general distinction exists between the more primitive tribes of the hills and jungles and the civilised inhabitants of the fertile tracts; and some ethnologists hold that the difference is racial and not merely the result of culture…

“It would seem probable, then, that the original speakers of the Dravidian languages were outsiders, and that the ethnographical Dravidians are a mixed race. In the more habitable regions the two elements have fused, while representatives of the aborigines are still in the fastnesses (in hills and forests) to which they retired before the encroachments of the newcomers. If this view be correct, we must suppose that these aborigines have, in the course of long ages, lost their ancient languages and adopted those of their conquerors. The process of linguistic transformation, which may still be observed in other parts of India, would seem to have been carried out more completely in the South than elsewhere.

“The theory that the Dravidian element is the most ancient which we can discover in the population of Northern India, must also be modified by what we now know of the Munda languages, the Indian representatives of the Austric family of speech, and the mixed languages in which their influence has been traced. Here, according to the evidence now available, it would seem that the Austric element is the oldest, and that it has been overlaid in different regions by successive waves of Dravidian and Indo-European on the one hand, and by Tibeto-Chinese on the other…

“At the same time, there can be little doubt that Dravidian languages were actually flourishing in the western regions of Northern India at the period when languages of the Indo-European type were introduced by the Aryan invasions from the north-west. Dravidian characteristics have been traced alike in Vedic and Classical Sanskrit, in the Prakrits, or early popular dialects, and in the modern vernaculars derived from them. The linguistic strata would thus appear to be arranged in the order-Austric, Dravidian, Indo-European.

“There is good ground, then, for supposing that, before the coming of the Indo-Aryans speakers the Dravidian languages predominated both in Northern and in Southern India; but, as we have seen, older elements are discoverable in the populations of both regions, and therefore the assumption that the Dravidians are aboriginal is no longer tenable. Is there any evidence to show whence they came into India?

“No theory of their origin can be maintained which does not account for the existence of Brahui, the large island of Dravidian speech in the mountainous regions of distant Baluchistan which lie near the western routes into India. Is Brahui a surviving trace of the immigration of Dravidian-speaking peoples into India from the West? Or does it mark the limits of an overflow form India into Baluchistan? Both theories have been held; but as all the great movements of peoples have been into India and not out of India, and as a remote mountainous district may be expected to retain the survivals of ancient races while it is not likely to have been colonised, the former view would a priori seem to be by far the more probable.”

Thus the generally accepted view now is that the original inhabitants of India were not the Dravidians but the pre-Dravidian Munda aborigines whose descendants now live in parts of Chotanagpur (Jharkhand), Chhattisgarh, Orissa, West Bengal, etc., the Todas of the Nilgiris in Tamil Nadu, the tribals in the Andaman Islands, the Adivasis in various parts of India (especially in the forests and hills), for example the Gonds, Santhals, Bhils, etc.

These facts lend support to the view that about 92 per cent of the people living in India are descendants of immigrants (though more research is required).

It is for this reason that there is such tremendous diversity in India. This diversity is a significant feature of our country, and the only way to explain it is to accept that India is largely a country of immigrants.

There are a large number of religions, castes, languages, ethnic groups, cultures etc., in our country, which is due to the fact that India is a country of immigrants. Somebody is tall, somebody is short, some are dark, some are fair complexioned, with all kinds of shades in between, someone has Caucasian features, someone has Mongoloid features, someone has Negroid features, etc. There are differences in dress, food habits and various other matters.

We may compare India with China, which is larger both in population and in land area than India. China has a population of about 1.3 billion whereas our population is roughly 1.1 billion. Also, China has more than twice our land area. However, all Chinese have Mongoloid features; they have a common written script (Mandarin Chinese), and 95 per cent of them belong to one ethnic group, called the Han Chinese. Hence there is a broad (though not absolute) homogeneity in China.

On the other hand, India has tremendous diversity and this is due to the large-scale migrations and invasions into India over thousands of years. The various immigrants/invaders who came into India brought with them their different cultures, languages, religions, etc., which accounts for the tremendous diversity in India.

Since India is a country of great diversity, it is absolutely essential if we wish to keep our country united to have tolerance and equal respect for all communities and sects. It was due to the wisdom of our founding fathers that we have a Constitution which is secular in character, and which caters to the tremendous diversity in our country.

Thus it is the Constitution of India which is keeping us together despite all our tremendous diversity, because the Constitution gives equal respect to all communities, sects, lingual and ethnic groups, etc. The Constitution guarantees to all citizens freedom of speech (Article 19), freedom of religion (Article 25), equality (Articles 14 to 17), liberty (Article 21), etc.

However, giving formal equality to all groups or communities in India would not result in genuine equality. The historically disadvantaged groups must be given special protection and help so that they can be uplifted from their poverty and low social status. It is for this reason that special provisions have been made in our Constitution in Articles 15(4), 15(5), 16(4), 16(4A), 46, etc., for the uplift of these groups. Among these disadvantaged groups, the most disadvantaged and marginalised in India are the Adivasis (STs), who, as already mentioned, are the descendants of the original inhabitants of India, and are the most marginalised and living in terrible poverty with high rates of illiteracy, disease, early mortality etc. Their plight has been described by this Court in Samatha vs. State of Andhra Pradesh and Ors. (AIR 1997 SC 3297, Para 12 to 15). Hence, it is the duty of all people who love our country to see that no harm is done to the Scheduled Tribes and that they are given all help to bring them up in their economic and social status, since they have been victimised for thousands of years by terrible oppression and atrocities. The mentality of our countrymen towards these tribals must change, and they must be given the respect they deserve as the original inhabitants of India.

The bravery of the Bhils was accepted by that great Indian warrior Rana Pratap, who held a high opinion of Bhils as part of his army.

The injustice done to the tribal people of India is a shameful chapter in our country's history. The tribals were called ‘rakshas' (demons), ‘asuras', and what not. They were slaughtered in large numbers, and the survivors and their descendants were degraded, humiliated, and all kinds of atrocities inflicted on them for centuries. They were deprived of their lands, and pushed into forests and hills where they eke out a miserable existence of poverty, illiteracy, disease, etc. And now efforts are being made by some people to deprive them even of their forest and hill land where they are living, and the forest produce on which they survive.

The well-known example of injustice to tribals is the story of Eklavya in the Adiparva of the Mahabharata. Eklavya wanted to learn archery, but Dronacharya refused to teach him, regarding him as lowborn. Eklavya then built a statue of Dronacharya and practised archery before the statue. He would have perhaps become a better archer than Arjun, but since Arjun was Dronacharya's favourite pupil Dronacharya told Eklavya to cut off his right thumb and give it to him as guru dakshina (gift to the teacher given traditionally by the student after his study is complete). In his simplicity Eklavya did what he was told.

This was a shameful act on the part of Dronacharya. He had not even taught Eklavya, so what right had he to demand guru dakshina, and that too of the right thumb of Eklavya so that the latter may not become a better archer than his favourite pupil Arjun?

Despite this horrible oppression on them, the tribals of India have generally (though not invariably) retained a higher level of ethics than the non-tribals. They normally do not cheat or tell lies, or commit other misdeeds, which many non-tribals do. They are generally superior in character to non-tribals.

It is time now to undo the historical injustice to them.

Instances like the one with which we are concerned in this case deserve total condemnation and harsh punishment.

Link: http://www.hindu.com/2011/01/12/stories/2011011253071300.htm

140-year-old ban is lifted; 28,000 prisoners will have right to vote in Britan

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More than 28,000 prisoners are to win the right to vote, new figures showed yesterday, as David Cameron faces a growing revolt from the Tory right against the lifting of the 140-year-old ban on inmates voting in British elections.
Crispin Blunt, the justice minister, announced that 28,770 prisoners serving sentences of up to four years will be given the right to vote. The figures include 5,991 prisoners convicted of violent offences and 1,753 inmates convicted of sexual offences.
The government revealed the change last year in response to a ruling by the European Court of Human Rights at Strasbourg six years ago that a blanket voting ban on convicted prisoners in British jails was unlawful.
Philip Hollobone, the Eurosceptic Tory MP for Kettering, is to intensify pressure on the government to restore the ban when he holds a debate at Westminster Hall next week.
Hollobone said: "There is no reason at all for the government to change the status quo. Just because the European court has made a pronouncement doesn't mean that the British government needs to accept that. Anyway, the British parliament decided these matters in 1870 – 75 years before the European court was established.
"The idea that the British parliament hasn't talked about this issue, which was mentioned in the European court judgment, is ludicrous. It was the 1870 forfeiture act which said prisoners shouldn't have the right to vote.
"I really don't see why the Conservative party should be forced to accept a LibDem manifesto commitment. The vast majority of my constituents are absolutely appalled at the idea of prisoners being given the right to vote."
Sadiq Khan, the shadow justice secretary, criticised the high numbers of prisoners who will be allowed to vote. "This is a slap in the face for victims of crime. We have already seen the Conservative-led government break their promise on knife crime. Now they are also giving thousands of offenders the vote.
"MPs on all sides of the House and the public are right to be angry about this decision. But they should also be angry at the manner in which it was announced – sneaked out on the day parliament broke up for Christmas."
A cabinet office spokesman said: "The government's proposals for giving prisoners the right to vote automatically exclude all offenders serving four years or more. For prisoners serving less, the sentencing judge will still have the power to remove the vote.
"Removing the blanket ban on prisoners voting is not a choice, but a legal obligation as a result of a court ruling. Failing to implement the ruling would put the government in breach of its international obligations and risk paying out taxpayers' money in compensation claims.
"We believe drawing the line at prisoners serving less than four years is enough to meet our legal obligations but goes no further than that. It ensures the most serious offenders are excluded."

Link: http://www.guardian.co.uk/politics/2011/jan/05/prisoners-right-to-vote-britain

Sting Operations and Privacy- A British Experience

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Business secretary Vince Cable, who was secretly recorded by two undercover reporters. Photograph: Getty Images

Two journalists misrepresent themselves as constituents of members of parliament to gain access to appointments at their advice surgeries, and proceed secretly to record their conversations with the MPs – conversations from which their editors then quote selectively in prominent front-page stories. Is this ethical? Is it even legal?

The Press Complaints Commission's code forbids the use of subterfuge, misrepresentation and clandestine recording devices, except where the publication is in the public interest and the information cannot be obtained any other way. The public interest includes "preventing the public from being misled by an action or statement of an individual or organisation".

That might sound promising for the journalists. The trouble is, however, that they would have to point to some specific prior action or statement of the MPs concerned that had created a misleading impression. Collective cabinet responsibility, for example, does not mean that everyone in the cabinet is claiming to agree with cabinet decisions. It means only that ministers agree not to contradict them in public.

Where the journalists' subterfuge, misrepresentation and use of clandestine devices themselves create public dissension from cabinet decisions that otherwise would not exist, the journalists cannot claim that they were acting to prevent a pre-existing misleading impression. The public contradiction is entirely of the journalists' own making. One cannot claim to be a hero by attempting to rescue a person one has just pushed into a lake.

What about legality? The MPs might have civil actions in breach of confidence and breach of copyright. Breach of confidence occurs whenever someone makes information public that a reasonable person would have expected to remain private. That is undoubtedly the case here, but there is a complication – the MPs would have to show that they had suffered loss and there is a defence of disclosure in the public interest. If the MP does not in the event lose his or her ministerial job as a result of the disclosure, loss might be difficult to prove.

Moreover, if the disclosure that most threatens the MP's job is one that might plausibly count as in the public interest – for example that the MP had pre-determined a decision in which quasi-judicial neutrality was required – it might be difficult to argue that other breaches had caused the loss.

Breach of copyright is more promising – copyright exists in the spoken word as soon as it recorded – and it is possible to sue not only for losses but also for the defendants' gains, namely the extra income the newspaper received from higher sales and website hits as a result of the story. (This is an outside possibility too in breach of confidence, but tricky outside purely commercial contexts.) The equivalent of public interest disclosure – the fair dealing defence – would be awkward for journalists where they had lied their way to obtaining the recording. On the other hand, proving the exact amount of the newspaper's gain would be difficult and potentially expensive.

But there is an even more serious possibility for the journalists and for their newspaper: the criminal law. Section 2 of the Fraud Act 2006 makes it a criminal offence, punishable by up to 10 years in prison, to dishonestly make a false representation with the intention of putting someone at risk of pecuniary loss or with the intention of making a pecuniary gain for another.

Unlike in the civil law, what counts is the defendants' intention to cause harm, rather than the actual result. Did the journalists and their editors intend through dishonest false statements to put ministers at risk of losing their jobs? Did they intend to make money for their paper? If either is true, a criminal offence has taken place. There is no free-standing public interest defence. Perhaps the journalists involved should now be preparing their answers to those questions.

Source: http://www.guardian.co.uk/media/2010/dec/22/telegraph-journalists-sting-mps

Inviting students to work on a Research Project

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Dear Readers,

A leading research foundation in Delhi is working on a research project on  "Integrating Information and Communication Technology in Judicial Process".  The foundation invites law students to work on this project and be part of the project. All contributions to the project in any manner will be acknowledged through certificates. As a research assistant on this project, the student will be expected to meet the deadlines and complete the projects in time. If you are interested in being a part of this project please mail your resume to strippedlaw@gmail.com along with your contact details and a write up in 500 words as to why you want to be a part of this project on or before 14th January 2011. Late applications will not be accepted. All the work will be purely through online mode and no physical presence is needed.

Thanking you,
Raghul Sudheesh
Founder - STRIPPED LAW

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