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In this article, Bhargav K.S from KLE Law College discusses Insurance Regulatory and Development Authority (IRDA) Act, 1999.

INSURANCE

Insurance is a contract. In which there is a full or partial financial compensation provided for the loss or damage caused by events which are beyond the control of the insured party.There are a wide range of insurance policy available. The most common types of insurance policies are based on automobiles, health, homeowners and life insurance policies. There are insurance policies available for specific needs such as medical malpractice, professional liability insurance etc.

INSURANCE REGULATORY AND DEVELOPMENT AUTHORITY

Insurance Regulatory and Development Authority regulates and promotes the insurance and re-insurance industries of India. It was established by the Insurance and Regulatory and Development Authority Act,1999, an Act passed by the government of India. It’s headquarters is in Hyderabad which was moved from Delhi.

HISTORY OF INSURANCE IN INDIA

Insurance has a deep-rooted history in India. Insurance practices was found in the ancient Indian texts of Rig-Veda. Rig-Veda refers to the concept of ‘Yogakshema’ which means, ‘prosperity, well being and security of people’.

In India Insurance was also mentioned in the ancient writings of Kautilya (Arthasastra), Manu (Manusmrithi), Yagnavalkya (Dharmashastra) which states the re-distribution of resources after a God’s Act (Flood, earthquake)etc or during famine or epidemics. Ancient history has found traces of insurance in the form of marine trade loans.

Business in life insurance began with the establishment of Oriental life insurance company in Calcutta. In the nineteenth century, Bombay Mutual, Oriental and Empire of India began their business in the Bombay presidency. But in the nineteenth Century the whole insurance sector was dominated and controlled by the foreign insurance companies. Hence, Indian insurance company had to put up with strong competition from the foreign insurance companies like Liverpool, London Global Insurance etc.

The first statute which regulated the life insurance was passed in 1912. The Indian life insurance was passed in 1912. The Indian life Assurance Companies Act was enacted to help the government to collect all the necessary information regarding the life and non-life insurance business which is conducted by Indian and foreign insurers in India. There were unfair trade practices in the insurance sector due to a large number of competition among the insurance companies. Hence, the Government of India decided to nationalize the insurance business.The life-insurance sector was nationalized by an ordinance issued on January 19^th, 1956. The life insurance corporation was established in the same year. The life insurance corporation absorbed 154 Indian,16 Non-Indian insurers, and 75 provident societies.

The Government passed the general insurance business Act in 1972 which nationalized the insurance sector,107 insurers were grouped into four companies:-

1) National Insurance Company Ltd at Kolkata.

2) New India Assurance Company Ltd at Mumbai.

3) Oriental Insurance Company Ltd at New Delhi.

4) United India Insurance Company Ltd at Chennai.

The government set up a committee headed by the former chairman of the Reserve Bank of India governor R.N Malhotra to propose recommendation for the initiation and implementation of reforms in the Indian Insurance sector. The committee submitted a report in 1994 which recommended that the private sector be permitted to enter the insurance sector. It also recommended the participation of the foreign insurance companies but a joint venture was preferred with Indian partners. With the recommendation from the Malhotra Committee, the Insurance Regulatory and Development Authority (IRDA) Act was passed in 1999 by the Parliament of India. Insurance Regulatory and Development Authority is an autonomous body was set up to develop the Indian insurance authority.

The Insurance Regulatory and Development Authority (IRDA) opened up the Indian insurance markets in August 2000 by providing invitation for registration proposal. And the foreign companies were allowed to enter the Indian insurance sector with an ownership up to 26%.

The main aim of the Insurance Regulatory and Development Authority of India was to increase customer satisfaction with a variety of Insurance products and services and also promote healthy competition in the Insurance sector. IRDA also aimed at increasing the consumer choice and provide security in the insurance market in India.

The Insurance Regulatory and Development Authority has powers to regulate the insurance sector under section 144A of the insurance Act, 1938. The main objectives of the IRDA are the protection of Indian policy holders and also includes the registration of life and non life insurance companies.

IRDA increased the Foreign Direct Investment from 26 % to 49%.

STRUCUTRE OF IRDA

IRDA consists of ten-members with five full time and four part time members appointed by the Government of India. As of September 2016 the present authority is chaired by T.S Vijayan.

And it’s full-time members are :-

J Joseph
Nilesh sathe
R Iyer
Pournima Gupte
D Singh.

POWERS AND FUNCTIONS OF INSURANCE REGULATORY AND DEVELOPMENT AUTHORITY

The IRDA has the duty to promote and develop the growth of insurance and re-insurance business across India. The duties, powers, functions of IRDA has been mentioned under the section 14 of IRDA Act, 1999.

POWERS OF IRDA

IRDA determines the capital structure of all the companies.
IRDA stipulates the money to the companies which has to be deposited with the RBI.
Company’s balance sheet and Accounts have to submitted to the IRDA.
Only insurance business should be undertaken by companies.
IRDA will prescribe the investment of assets in the form of approved securities.
IRDA prescribes the nature of general insurance business.
Every financial year statement of investment should be submitted to the IRDA by insurance companies.
The insurance companies have to take a prior permission of the IRDA to appoint a chief executive officer .
Insurance agents should obtain licence from IRDA.
IRDA can levy penalty on companies which fail to comply with the rules and regulations.

FUNCTIONS OF IRDA

IRDA issues certificate of registration as well as modify, renew, withdraw and suspend registration that is deemed unfit.
IRDA protects the interests of the policy holders, they settle the disputes of insurance claims.
IRDA provides the proper qualification required for the insurance agents
IRDA promotes the efficiency of the insurance business.
IRDA also conducts the necessary information and also investigates organizations connected with the insurance business.
IRDA specifies the way in which the book of account has to maintained by the insurance companies.
IRDA regulates and controls the investment of funds by insurance companies.
IRDA supervises the Tariff Advisory Committee.
IRDA also fixes the percentage of insurance business in rural and social sectors.

DUTIES OF INSURANCE REGULATORY AND DEVELOPMENT AUTHORITY

1) Regulates the working of the insurance companies in the following ways:-

* Nature of the insurance business

* Persons to be employed.

2) Promotes the growth of insurance companies.Even the banks are also permitted to promote the insurance companies.Different kinds of policies and also different kind of insurances are also suggested by IRDA.

INSURANCE OMBUDSMAN

The main aim of the creation of the ombudsman is to settle the disputes between the insured and insurer. Judicial powers are given to the ombudsman to have a speedy settlement of the cases. Any complaint filed on the insurance companies will be settled by the ombudsman.

THE OTHER DEVELOPMENTS IN THE INSURANCE SECTOR

The establishment of the insurance repository system which helps policy holders to buy and maintain insurance policies electronically.

The insurance sector is massive industry with an expansion rate of 15-20% which constitutes to 7% to the whole GDP. Hence, a well developed insurance sector is a big boom for the whole economy of a country.

REFERENCE:-

1)www.investopedia.com

2)www.medindia.net

3)www.irda.gov.in

4)www.accountlearning.com

5)www.bankexamstoday.com

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In this article, Kriti Kothari discusses The New York Arbitration Convention also known as the Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

The New York Convention

The New York convention also known as the Convention on the Recognition and Enforcement of Foreign Arbitral Awards was first adopted by the United Nations diplomatic conference on 10 June 1958 and was enforced on 7 June 1959. It is often considered as one of the most important treaties in the field of international trade law and has a great significance. It is often described as a foundation stone in the field of international arbitration. It requires courts of the contracting states to give effect to an agreement to arbitrate when seized of an action in a matter covered by an arbitration agreement and also to recognize and enforce awards made in other states, subject to specific limited exceptions. At present, the convention is signed by 156 state parties.

It was adopted mainly for promoting healthy business relations between the countries and to promote harmony and coordination among the states. Further it reduces the burden of the states to decide which laws to be enforced or the procedures of which countries to be followed during the process of the arbitration. Further it also establishes a minimum level of control which the contracting states can exert over arbitral awards and arbitral agreements. The two main actions which were taken by the New York convention are as follows:

Recognition and Enforcement of Foreign Arbitral Award

The first action is to recognize the awards made in the foreign territory and is defined under the Article 1 of the convention. It is the obligation of the states to recognize such awards and enforce them according to the Article 3 of the convention. The state who wants to seek the foreign arbitral award needs to submit the following documents before the court and it lies upon the interpretation of the court to decide that it falls under the scope of the convention or not. A state which needs to seek the enforcement needs to submit the following documents

The arbitral award
The arbitral document according to the article 4 of the convention

The state against whom the convention is enforced can object to the enforcement by submitting the proof of even one grounds of refusal of the enforcement which are mentioned in the Article 5 of the constitution. Now it lies on the discretion of the courts to enforce an award or not based on the paragraph 2 of the article 5 of the enforcement.

Referral to the Court by the method of Arbitration

Article II, paragraph 3, provides that a court of a Contracting State, when seized of a matter in respect of which the parties have made an arbitration agreement, must, at the request of one of the parties, refer them to arbitration.

Key features of the New York Convention

Few of the key features of the conventions are described below:

It creates a uniform international framework which enables various countries to establish strong trade and commercial relations and solve disputes with the help of arbitration. It achieves this by firstly requiring the signatory states to enforce the awards rendered in the signatory state and secondly by limiting the grounds on which the states may refuse recognition and enforcement.
The states who are a party to this convention are required to bind to the foreign awards and enforce them according to the rules and procedures established by the New York Convention.
The procedure is free from any complex procedures and charges. The states just need to submit to a competent court in the contracting state where the enforcement is sought.
The main provisions of the convention are as follows

Article I of the New York Convention

This convention shall observe to the popularity and enforcement of arbitral awards made within the territory of a state other than the country in which the recognition and enforcement of such awards are sought and bobbing up out of variations between people, whether bodily or criminal. It shall also practice to arbitral awards no longer considered as home awards inside the nation in which their reputation and enforcement are sought.
The term “arbitral awards” shall consist of now not best awards made by way of arbitrators appointed for each case but also the ones made through permanent arbitral bodies to which the parties have submitted.
When signing, ratifying or acceding to this convention, or notifying extension beneath article X hereof, any kingdom can also on the basis of reciprocity claim that it’ll follow the convention to the popularity and enforcement of awards made handiest within the territory of any other Contracting state. it can additionally declare that it’s going to follow the convention only to variations arising out of prison relationships, whether contractual or not, that are taken into consideration as industrial below the national regulation of the country making such announcement.

Article II of the New York Convention

Every Contracting nation shall understand an agreement in writing which the events adopt to submit to arbitration any or all variations that have arisen or which may get up between them in admire of a described prison courting, whether or not contractual or not, regarding a subject dependable to agreement by arbitration.
The term “agreement in writing” shall include an arbitral clause in a settlement or an arbitration agreement, signed by way of the events or contained in an change of letters or telegrams.
The court docket of a Contracting nation, while seized of an motion in a be counted in recognize of which the parties have made an agreement inside the meaning of this article, shall, on the request of one of the events, refer the parties to arbitration, unless it unearths that the said agreement is null and void, inoperative or incapable of being carried out.

Article III of the New York Convention

Every Contracting nation shall apprehend arbitral awards as binding and put in force them in accordance with the rules of process of the territory where the award is relied upon, underneath the conditions laid down within the following articles. There shall now not be imposed substantially greater exhausting conditions or better charges or charges on the popularity or enforcement of arbitral awards to which this conference applies than are imposed on the popularity or enforcement of home arbitral awards.

Article IV of the New York Convention

To obtain the recognition and enforcement referred to inside the previous article, the celebration making use of for reputation and enforcement shall, on the time of the application, deliver:

(a) The duly authenticated authentic award or a duly licensed copy thereof;

(b) The unique settlement mentioned in article II or a duly licensed reproduction thereof.

If the said award or agreement is not made in a professional language of the us of a in which the award is relied upon, the party making use of for reputation and enforcement of the award shall produce a translation of these documents into such language. the translation shall be certified with the aid of an professional or sworn translator or via a diplomatic or consular agent.

Article V of the New York Convention

recognition and enforcement of the award may be refused, on the request of the birthday party towards whom it’s miles invoked, simplest if that birthday celebration furnishes to the able authority wherein the popularity and enforcement is sought, evidence that:

(a) The parties to the agreement cited in article II have been, under the law relevant to them, beneath some disability, or the said agreement isn’t valid under the regulation to which the events have subjected it or, failing any indication thereon, below the regulation of the united states of america wherein the award became made; or

(b) The celebration in opposition to whom the award is invoked changed into no longer given right note of the appointment of the arbitrator or of the arbitration complaints or was otherwise not able to present his case; or

(c) The award offers with a distinction now not contemplated by using or not falling within the terms of the submission to arbitration, or it includes choices on matters past the scope of the submission to arbitration, furnished that, if the choices on subjects submitted to arbitration can be separated from the ones now not so submitted, that part of the award which includes decisions on matters submitted to arbitration may be recognized and enforced; or

(d) The composition of the arbitral authority or the arbitral technique was not in accordance with the settlement of the events, or, failing such settlement, became now not in accordance with the regulation of the usa wherein the arbitration happened; or

(e) The award has not but emerge as binding on the parties, or has been set apart or suspended by using a competent authority of the country in which, or underneath the law of which, that award become made.

Reputation and enforcement of an arbitral award will also be refused if the able authority in the usa in which recognition and enforcement is sought finds that:

(a) The concern rely of the distinction isn’t able to agreement via arbitration below the law of that united states of america; or

(b)The popularity or enforcement of the award would be contrary to the general public coverage of that usa.

Article VI of the New York Convention

If a utility for the setting apart or suspension of the award has been made to a able authority mentioned in article V(1)(e), the authority earlier than which the award is sought to be relied upon might also, if it considers it proper, adjourn the selection on the enforcement of the award and might also, at the software of the celebration claiming enforcement of the award, order the other birthday party to offer appropriate protection.

Article VII of the New York Convention

The provisions of the prevailing convention shall not have an effect on the validity of multilateral or bilateral agreements regarding the recognition and enforcement of arbitral awards entered into by the Contracting States nor deprive any interested celebration of any proper he may additionally must avail himself of an arbitral award in the manner and to the extent allowed via the regulation or the treaties of the u . s . where such award is sought to be relied upon.
The Geneva Protocol on Arbitration Clauses of 1923 [2] and the Geneva conference at the Execution of overseas Arbitral Awards of 1927 [3] shall give up to have impact between the Contracting States on their turning into bound and to the volume that they turn out to be certain, by way of this conference.

Article VIII of the New York Convention

This convention shall be open till 31 December 1958 for signature on behalf of any Member of the United international locations and additionally on behalf of any other country that’s or hereafter turns into a member of any specialized organization of the United international locations, or which is or hereafter becomes a party to the Statute of the global courtroom of Justice, or any other state to which an invite has been addressed by using the overall assembly of the United nations.
This convention shall be ratified and the tool of ratification will be deposited with the Secretary-standard of the United Nations.

Article IX of the New York Convention

This convention shall be open for accession to all States stated in article VIII.
Accession shall be effected by the deposit of an instrument of accession with the Secretary-popular of the united international locations.

Article X of the New York Convention

Any nation might also, at the time of signature, ratification or accession, claim that this conference shall enlarge to all or any of the territories for the worldwide members of the family of which it’s far accountable. One of these announcements shall take impact while the convention enters into force for the nation concerned.
At any time thereafter this kind of extension shall be made by using notification addressed to the Secretary-standard of the United international locations and shall take impact as from the ninetieth day after the day of receipt with the aid of the Secretary-trendy of the United international locations of this notification, or as from the date of entry into force of the convention for the state involved, whichever is the later.
With appreciate to those territories to which this convention is not prolonged at the time of signature, ratification or accession, each nation concerned shall don’t forget the possibility of taking the vital steps so that you can increase the utility of this convention to such territories, subject, in which important for constitutional reasons, to the consent of the Governments of such territories.

Article XI of the New York Convention

In the case of a federal or non-unitary kingdom, the following provisions shall follow

(a) With recognize to the ones articles of this conference that come inside the legislative jurisdiction of the federal authority, the duties of the federal government shall to this quantity be similar to the ones of Contracting States which are not federal States;

(b) With respect to those articles of this convention that come inside the legislative jurisdiction of constituent states or provinces which are not, beneath the constitutional machine of the federation, sure to take legislative action, the federal authorities shall convey such articles with a favourable advice to the attention of the correct government of constituent states or provinces at the earliest possible moment;

(c) A federal state birthday party to this conference shall, on the request of every other Contracting state transmitted thru the Secretary-trendy of the United international locations, supply a declaration of the law and practice of the federation and its constituent devices in regard to any precise provision of this convention, showing the quantity to which effect has been given to that provision through legislative or other motion.

Article XII of the New York Convention

This convention shall come into pressure at the 90th day following the date of deposit of the 0.33 device of ratification or accession.
For every state ratifying or acceding to this conference after the deposit of the 0.33 instrument of ratification or accession, this conference shall enter into pressure at the ninetieth day after deposit through such country of its instrument of ratification or accession.

Article XIII of the New York Convention

Any Contracting state can also denounce this convention with the aid of a written notification to the Secretary-general of the united countries. Denunciation shall take effect twelve months after the date of receipt of the notification by way of the Secretary-wellknown.
Any kingdom which has made a declaration or notification underneath article X might also, at any time thereafter, by notification to the Secretary-widespread of the United international locations, claim that this conference shall cease to extend to the territory worried three hundred and sixty five days after the date of the receipt of the notification by means of the Secretary-preferred.
This conference shall stay relevant to arbitral awards in admire of which reputation or enforcement proceedings were instituted earlier than the denunciation takes effect.

Article XIV of the New York Convention

A Contracting kingdom shall no longer be entitled to avail itself of the prevailing conference against different Contracting States besides to the volume that it’s far itself sure to apply the convention.

Article XV of the New York Convention

The Secretary-trendy of the United Nations shall notify the States contemplated in article VIII of the subsequent:

(a) Signatures and ratifications according with article VIII;

(b) Accessions according with article IX;

(d) The date upon which this convention enters into force in accordance with article XII;

(e) Denunciations and notifications in accordance with article XIII.

Article XVI of the New York Convention

This conference, of which the Chinese, English, French, Russian and Spanish texts shall be equally proper, shall be deposited within the documents of the united international locations.
The Secretary-trendy of the united international locations shall transmit a licensed copy of this convention to the States contemplated in article VIII.

The article was all about New York Convention and its main provisions. Hope the article explained all the provisions of the New York Convention and how it can be applied practically from a bird’s eye.

Introduction

A domain name is the human-friendly name of an internet address. URL is constituted as an actual technical name for a website. The coordination of all the websites or domain names is said to be done by Internet Corporation for Assigned Names and Numbers (ICANN). There are two levels of domain, i.e. top level and second level domains. At top level domains, it consists of two character abbreviations of the names of the country; for e.g., India’s ccTLD is “.in” but in a domain name, the label that precedes the TLD constitutes the second level domain; for e.g. “.com”.

Registration of domain names lead to the disputes which usually allege the infringement of trademarks. Anything bearing the mark is taken to be an indication of the reputation and goodwill of the company, the quality of product or service and the affiliation of the product/service with the company.[1]

Cyber Squatting

Cyber squatting- The most common domain name dispute relate to the crime of cyber squatting. Cyber squatting can be understood as the registration of a domain name that consists of a mark that is identical to or confusing similar to an existing trademark. Cyber squatting is constitutional only if the registration has been done in bad faith, that is, with the intention of selling the domain name at such a higher price to the owner of the trademark, or to create an impression of having some kind of affiliation with the owner of the trademark.

For e.g., in the case of Oberoi Hotels Pvt. Ltd. v. Arun Jose, oberoi hotels owned a trademark on the mark “The Trident” and “Trident Hotels”, while Arun Jose had registered the domain name ‘tridenthoels.com’. The courts held that the domain name was held by the respondent in bad faith and hence he was responsible for cyber squatting.

Cyber squatting (otherwise called space hunching down), as indicated by the United States government law known as the Anti-cybersquatting Consumer Protection Act, is enrolling, trafficking in, or utilizing an Internet area name with lacking honesty purpose to benefit from the goodwill of a trademark having a place with another person. The cyber squatter then offers to offer the space to the individual or organization that possesses a trademark contained inside the name at an expanded cost. The term is gotten from “hunching down”, which is the demonstration of involving a surrendered or empty space or building that the squatter does not claim, lease, or generally have consent to utilize . A domain name generally comprises of the trademark of an organization or business a domain name has 2 essentials elements , for say the top level domain (TLD) such as .com, whereas second level (.co) and third level that may consist of a trademark . For example, www.trademark.co.com. In this “.com” is a top level domain, “.co” is a second level domain and “trademark” is a third level domain.

In the well-known case of Marks and Spencers, the defendant registered enlisted trademark of mark and Spencers as “www.marks and spencers .com” with the mala fide aim to offer it at a higher cost to the legitimate proprietor . This demonstration in digital world is regularly known as “CYBER SQUATTING”, comparably in UK , In the judgment of “One in a million case” the English court conceded injunction against cybersquatting of domain names including Sainsbury, Marks and Spencer and English telecom the offense of cybersquatting additionally involves unjustifiable competition where a defendant deliberately takes uncalled for favorable position of a well-known trademark to occupy movement to the area so that the legitimate trademark proprietor is constrained to pay the litigant a preposterous add up to exchange an domain name. In an English court judgment, it was held that whether the domain was registered by another person or which is deceptively similar to the famous trademark, the unfair competition may be assumed whereas in these cases deliberately the marks were registered and the motive lacked legitimate purpose that amounts to unfair registration.[2]

Yahoo Case

The other famous Yahoo case, the U.S. based yahoo Inc. suited the defendant in India who register a similar domain name Yahooindia.com and used [Yahoo India] as their trademark. The whole content of the website Yahooindia.com was very much similar to Yahoo Inc. The High Court of Delhi passed an order restraining the defendant from using Yahoo as their trademark or domain name and using the same code that infringe their copyrights. In the whole matter Indian Courts held that a domain name is very much entitled to the same protection as their trademark and observed the law of trademark that is applied to the virtual world as well.[3] , The practice that is come to be known as cybersquatting begun when most organizations were not sharp about the business openings on the Internet. Some entrepreneurial souls enlisted the names of understood organizations as area names, with the aim of offering the names back to the organizations when they at last woke up. Panasonic, Fry’s Electronics, Hertz and Avon was among the “casualties” of cyber squatters.

Leading Judgments

Further, in the case of Tata Sons Ltd. V Monu Kosuri and others³, the defendant registered deceptively similar domain name containing the word ‘Tata’ in it. The court confirmed that the domain names are not just internet address and it must be protected. Hence, the court ordered an ad interim injunction in favor of the plaintiff. In another case Acqua Minerals Ltd v. Pramod Borse⁴ and others the defendant deliberately registered ‘Bisleri.com’ as its domain name. When the plaintiff who were actually owning the marks ‘Bisleri’ moved an action , the court passes an injunction holding that a domain name serves the same function similar to trademark and thus need a similar level of protection as granted to the trademark . A domain name also identifies a web page as a source of origin or various services that are in same manner as the associated brand name. Similarly, in Dr Reddy’s Laboratories Ltd v Monu Kosuri and others ⁵, the court held that the defendant’s domain name ‘Dr Reddy’s lab .com’ was deceptively very much similar to the trademark of the plaintiff. In Satyam Infoway v Sifynet solutions^6, the appellant used ‘SIFY’ as a main component of its domain name as www.sifymall.com, www.siffy realestate.com on other hand the respondent infringed its domain name by using the same domain name. The Supreme Court held that appellant was entitled to injunction order to stop the respondent from using the domain names in dispute of it and held the respondent guilty of passing off.

Even when a trademark owner has registered a domain name with the particular gTLD, another party may register the same domain name or identical domain names with another gTLD. For e.g., in the case of NewsToday Printers and Publishers (P) Ltd. v. InetU, Inc., NewsToday printers registered the domain name of ‘newstoday.co.in’ in the ‘’.co.in’ domain, consisting of their registered trademark of ‘NewsToday’, while the respondent registered the domain name of ‘newstoday.com’ in the ‘.com’ domain. The court held that even though the domain name was identical or confusing similar to a trademark in which the complainant had rights, the complainant failed to establish that the respondent had no rights or legitimate interest in respect of domain name or that the domain name was registered in bad faith. The complaint was accordingly dismissed.

Another area of concern is that a large number of domain names can be created out of the same trademark by adding various prefixes and suffixes, even on the same gTLD. For e.g., in the case of Tata Sons Ltd. v. Ramadasoft, though Tata Sons had registered the domain name ‘Tata.com’, the respondent registered the following variations of the domain names incorporating the trademark “TATA’. The court held that the domain name were held by the respondent in bad faith and hence he was responsible for cyber squatting.

Likelihood of Confusion Test

The traditional test of likelihood of confusion was first applied by the US courts in the case of Comp Examiner Agency v. Juris, Inc., where the defendant, which was the owner of the trademark ’JURIS’, found that the name juris.com was being used by the plaintiff for the provision of legal services online. It sued the plaintiffs for the trademark infringement, while the plaintiff challenged the trademark of the defendants on the ground that the term juris was too generic, and therefore the trademark granted to it must be cancelled. The court founded further that te use of domain name ‘juris.com’ by the plaintiff ease likely to cause confusion or mistake as to the affiliation, connection or association of the plaintiff with the defendants. The use of this domain name therefore constituted trademark infringement and was causing irreparable harm to the reputation of the defendants, and also precluded the defendants from using a similar or confusingly similar domain name such as ‘juris.com’.

Cyber Squatting under the Lanham Act, ACPA

Anti-Cyber Squatting Consumer Protection Act of 1999 provides that a person will be liable for a civil action if

Has a bad faith to profit from the mark; and
Registers, traffics in or uses a domain name that is identical or confusingly similar to or dilutes a distinctive or famous work.[4]

In determining whether a person has bad faith intent described under subparagraph (A), a court may consider the factors such as, but not limited to-

The trademark or other intellectual property rights of a person, if any, in the domain name;
The extent to which domain name consists of the legal name of the person or a name that is otherwise commonly used to identify that person;
The person’s prior use, if any, of the domain name in the connection with the bona fide offering of any goods or services;
The person’s bona fide noncommercial or fair use of mark in a site accessible under the domain name;
The person’s intent to divert consumers from the mark owner’s online location to a site accessible under the domain name that could harm the goodwill represented by the mark, either for commercial gain or with the intent to tarnish or disparage the mark, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site;
The person’s offer to transfer, sell. Or otherwise assign the domain name to the mark owner or any third party for financial growth without having used, or having used, or having an intent to use, the domain name in the bona fide offering of any goods or services, or the person’s prior conduct indicating a pattern of such conduct;
The person’s provision of material and misleading false contact information when applying for the registration of the domain name, the person’s intentional failure to maintain accurate contact information, or the other person’s prior conduct indicating a pattern of such conduct;
The person’s registration or acquisition of multiple domain names which the person knows are identical or confusingly similar to marks of the others that are distinctive at the time of registration of such domains, or dilutive of famous marks of others that are famous at the of registration of such domain names, without regard to the goods or services of the parties; and
The extent to which the mark incorporated in the person’s domain name registration is or is not distinctive and famous within the meaning of sub-section (c).

Bad faith intent described shall not be found in any case in which the court determines that the person believed and had reasonable grounds to believe that the use of the domain name was a fair use or otherwise lawful.

There are major problems with the question of retrieving the domain names through court. Some of the problems that can be immediately identified are:

Issue of Jurisdiction– Trademark law is domestic, where as a central international authority controls domain name. As we can see, Municipal laws govern Trademarks; it has to be resolved by a domestic authority. In India, the trademark of a product or a company has to be registered as provided by the Trade Marks Act, 1999. This Act also provides for the dispute resolution mechanism.
When there is an infringement of a trademark, the Appellate Board has the power to decide the dispute. Other countries also have similar provisions to resolve trademark disputes.
His problem arises when the question of registration comes in. Registration and control of trademark is done under the domestic law whereas domain name is done by ICANN[5]an international domain name organization. The domain name central organization has its agents in different countries who issue domain names on the basis of first come first served principle.

As Internet is a worldwide network, and the website which is to be accessed can be infringed from anywhere in the world, the question arises whether a court can have jurisdiction over an infringer anywhere where the website is accessible. Courts in the United States[6] have taken jurisdiction over the matters of domain name infringement. The simple issue is if the individual owning the domain name resides within the jurisdiction of the court where the suit is filed, then the court can take cognizance of the offence and proceed against the individual concerned but if the individual is situated somewhere else, it is not possible.

The United Nations World Intellectual Property Organization (‘WIPO’) has proposed guidelines for resolving disputes concerning trademarks and for managing the Internet domain name process. WIPO[7] proposes that ICANN[8] establish a mechanism to give owners of famous or well-known trademarks exclusive use of their marks in some or all-generic top-level domains throughout a large geographic area. WIPO also recommends that ICANN[9] establish a dispute resolution procedure that would only handle allegations of cyber squatting.[10] In its interim report, the WIPO recommended dispute resolution for all intellectual property conflicts involving domain name registration.

The Indian Trademark Law and Legal Remedies

According to Section 135 of the Trade mark Act, 1999 legal remedies for suits for infringing registered trademarks or the passing of injunction, damages[11] or account of profits or delivery of goods or destruction of infringing goods. Section 103 provides penalty for the applying of false trademarks i.e. punishable with infringement of not less than 6 months and may extend up to 3 years followed by fine not less than Rs. 50000 extended up to 2 lacs. In case, if a mark is registered the common law remedy of passing off is available to the owner but in case in which his mark is registered, he also possess the statutory right to file the action for infringement under Trademarks Act 1999.[12]

Conclusion

Today the Internet has become such an integral part of the modern business environment inasmuch as it is a virtual world wherein buying and selling of goods and/or services takes place on a massive scale. The consumer avails the services on the Internet and certainly relates the same with the brand/trade/domain names. This leads to the creation/building of goodwill or reputation, which is an asset and if the services don’t meet the expected standards, it clearly affects the goodwill or reputation. Thus, more often than not the domain name is kept same as the trade name so that the ultimate consumer is aware as regards the source of the goods and/or services and expects the quality/standards maintained by the provider.

References

[1] Rastogi Anirudh, CYBER LAW, LAW OF INFORMATION TECHNOLOGY AND INTERNET, Lexis Nexis, pg. 322.

[2] Marks and Spencers and others v. one in a million, 1998 FSR 265.

[3] Yahoo INC v. Akash Arora, (1999) PTC 201

³Tata Sons Ltd. v Monu Kosuri and others ,2001 PTC 619

⁴ Acqua Minerals Ltd v Pramod Borse and others

[4] “A person shall be liable in a civil action by the owner of a mark, including a personal name which is protected as a mark under this section, if, without regard to the goods or services of the parties, that person-

Has a bad faith intent to profit from that mark, including a personal name which is protected as a mark under this section; and
Registers, traffics in, or uses a domain name that-
In the case of a mark that is distinctive at the time of registration of the domain name, is identical of confusingly similar to that mark;
In the case of a famous mark that is famous at the time of registration of the domain name, is identical of confusingly similar to or dilutive of that mark; or
Is a trademark, word, or name protected by reason of section 706 of title 18 or section 220506 of title 36.”

[5] Internet Corporation for Assigned Names and Numbers.

[6] Panavision International v. Toppen, 141 F. 3d 1316, Zippo’s case, 952 Supp. 1124.

[7] http://ecommerce.wipo.int/domains/background.html. In April 1999, following the First Internet Domain Name Process, WIPO published its Report, “The Management of Internet Names and Addresses: Intellectual Property Issues”, focusing on the problems caused by the conflict between trademarks and domain names. The recommendations formulated in the Report have largely been implemented by the Internet Corporation for Assigned Names and Numbers (ICANN), and have resulted in the implementation of a successful administrative system for resolving domain name disputes involving trademarks, as well as a system of best practices for domain name registration authorities, designed to avoid such conflicts.

[8] The Internet Corporation for Assigned Names and Numbers (ICANN) is a technical coordination body for the Internet. Created in October 1998 by a broad coalition of the Internet’s business, technical, academic, and user communities, ICANN is assuming responsibility for a set of technical functions previously performed under U.S. Government contract by IANA and other groups.

[9] ICANN was established in September 1998 by the Clinton Administration to take over responsibility for the IP address space allocation, protocol parameter assignment, domain name system, management, and root server system, management functions. Andrew Terrett, The Internet, Law Society Publishers London, 2000, p. 159.

[10] http://wipo2.wipo.int/process1/6-12-2001.

[11] Where plaintiff could not prove losses caused due to unauthorized use of his domain name, court held that damages could be paid- Adobe Systems Inc. v. Rohit Rathi, 2008 (37) PTC 523 (Del).

[12] Section 27, Trade Marks Act, 1999.

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In this article, Mitali Shahane who is currently pursuing Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata discusses How to protect and bequeath digital assets?

Introduction

There goes an old saying “What remains permanent, is Change”. This perfectly suits the current scenario where we see a drastic and rapid enhancement in the legal phraseology with the introduction of new concepts. This term suitably co-relates in the century we live in as it is not wrong to say that 21^st century is a technological world. Let’s take an example, A, wishes to protect and bequeath his property which is moveable as well as immoveable. However, he also holds certain properties virtually like Facebook accounts, bank passwords which might be used for funds transfer, etc. such accounts or passwords become your digital assets. There is no specific definition allotted to digital assets but as per our common parlance we may describe them as photographs, web sites, electronic accounts, social media accounts like Facebook, Twitter, LinkedIn, etc. and their respective passwords, email records and any other assets which exist in digital form[1]. The definition can extend to assets held personally like music and video files, medical records and any legal document or financial transactions in digitalized form. We one accumulates such properties it forms one’s digital estate[2].

There has been an increase in digital assets and the changing time has made inevitable to protect such assets as well. The term “digital assets” was coined in the 1990s which was used for trade secrets and any intellectual property in digital form[3].

Breaking the definition of Digital Assets

As described by Nathan Dosch, an estate planning and tax attorney at Nieder & Boucher “digital assets are any file on your computer in a storage drive or website and any online account or membership”[4].

We can categorize digital assets into following: devices, email, online accounts and other types of property.

Devices

Like computers, smartphones, tablets (IPads, Kindles, etc.) where personalized photographs, music and video files, important records like medical, legal, financial, business related are stored in such devices.

Email

There is a possibility that there may be exchange of certain messages virtually which may be useful for the legal heirs of the testator after his death. It may act as a “passkey” for the other online accounts[5]. One may have a backup of emails on the physical devices or cloud platform.

Online Account

Do you have a Facebook account? Do you make bill payments using the respective website account? Do you buy things online? Such type of accounts constitute your Online accounts. Social Accounts like Facebook, Twitter, LinkedIn, Youtube, etc. Financial or bank accounts for transacting money or transferring money, Sales and shopping online accounts on Amazon, Flipkart, Snapdeal, etc. and also business accounts.

Other Types of Property

Common types of property requiring a password for access include business computers and telephones, home security systems, voicemail, smartphones, and home computers[6].

The questions which are bound to arise may be “How to protect and bequeath the digital assets of a person? What is the importance of bequeathing the same? What are the problems faced by an individual or why is there a lacunae in the Indian legal system or why do we do not have laws to regulate the digital assets unlike moveable or immoveable properties? What are the possible safeguards?

Why bequeathing digital assets does become a “must”?

Consider this example as reflected in the analysis of Rachel Pinch for Wayne Law Review titled “Protecting Digital Assets After Death: Issues to Consider In Planning For Your Digital Estate”. A person named Justin Ellsworth (who was a Lance Corporal), while serving his term in Iraq died by a roadside bomb. He principally used emails to stay in contact with his parents. After his death in order to access the account, the parents approached Yahoo! Services. However, but due to its strict adherence to terms of service, they were deprived of the records. Therefore, the father of the deceased moved to the court wherein the Courts at Michigan demanded Yahoo! to release the email account. Let’s take another example for the same. Parents in Virginia wanted an access to their son’s Facebook account where they desired to hunt for reasons behind his son’s death. However, the same was denied citing privacy as the reason and due to the interference of the court, Facebook providers had to divulge the password settings and the records of his account were provided. Not only the social media accounts are of paramount importance of bequeathing the assets, but also the financial or business accounts. There may be persons who run a profit making website, which may help the legal heirs of the deceased. The businessmen may have some of his invoices or orders stored on Cloud which may help his legatees to access easily. Images, photos, letters, emails, etc. serve a valuable, for they add sentimental value to the account. If a person provides the password of his social media accounts like Facebook, it can be prevented from being hacked and wrongly used after the person’s death. Thus, bequeathing and protecting the digital assets in today’s time is of paramount importance not only when we see security or protection but also sentimentally.

Problems regarding Digital Assets

Firstly, the idea of digital assets should appeal the people and they should be motivated to approach such way of protection. People usually feel burdened with the procedure one has to undergo in order to organize and plan. Secondly, in USA states like Rhode Island, Connecticut, Indiana, Oklahoma, Idaho, etc. have regulations governing the estate planning of digital assets, but there needs a codification of the same, all the laws are scattered. States like New York, Hawaii, Maryland, North Dakota, New Hampshire, Massachusetts, Virginia and Oregon are debating on the point of introducing a legislation. Thus, no uniformity in the laws brings in ambiguity and people are not perturbed about the same.

A Lacunae in the Indian Legal System

Contrasting United States, India has no law for regulating the protection and bequeath of digital assets. The concept of digital assets is still in its nascent stage and not much awareness has been initiated by the government. We do have the Information Technology Act, 2000, however, the Act does not regularize digital assets. We have the Indian Succession Act, 1925 or Hindu Succession Act, 1956 for the Hindus for moveable and immoveable properties, but no express provision for the same has been formulated. The IT Act, 2000 does not give any clarity on its application for digital assets bequeathed through wills and testaments[7]. In such a situation the principles of intangible property and succession can be applied. There may be a possibility that digital assets may be in some other country, then the question of jurisdiction needs to be determined keeping the laws of that country, thereby revoke the same and if one hires a local digital service provider, the laws are silent about the same[8].

Safeguards

What are the safeguards a person can undertake to bequeath his property? Due to advancement in the technology online data can be accessed for a lifetime. One has the option of uploading all the passwords and documents. For example the application available on Windows, TrueKey[9] can serve a great purpose in such cases as it helps preserve passwords for every account used by the deceased. The number of accounts and the emails exchanged can be sent to the chosen contacts after one’s death. However, it has been suggested that one should bequeath the digital assets through the will route. Will would specifically specify the number of digital assets and to whom these assets have to be bequeathed by the executor. You can also disclose the passwords and divulging the documents by annexing the same. If no clear information is expressed, apply the Arm chair rule whereby the intention would be not to disclose the details of his digital assets[10].

Steps to bequeath and protect digital assets

Firstly what is recommended is to get your digital asset sheltered by a protection plan. Steve Parrish in an article to Forbes titled “Planning Steps to Protect Your Digital Assets”[11] described his experience with the same. It was the time when he bought Apple II and knew that he has to rely on the installer, customer service and repairman for protection, but appreciates the fact that the technical infrastructure is more enhanced therefore, recommends to adopt the same.

People are advised to make an inventory. There are many accounts which has crucial information which can either be professional, business or personal. The employees needs to be guarded. Have you stored the data in a device, whether on cloud or not is very important to know all of this. Thus, inventory helps you to locate the information stored on such accounts very easily and how the information is backed up. Always make sure that you regularly clean up your inventory for finding out an weakness Also, keep the option of making a list of the digital assets you have been retrieving. Cast a wide digital net when planning[12], jot every detail along with other usernames, passwords and answers to the security questions. It is very important to know the law of the land, therefore it is advisable to consult any lawyer for this matter. One should not forget that while bequeathing the said assets they are not compromising on the privacy. Be particular with the executor and what kind of access has to be given to which person. Ensure that the usernames, passwords and answers to the security questions are kept separate from the will. The advantage of maintaining passwords or usernames separately would help one to change the same whenever he decides. Don’t get the will registered as it might become open to the public and here the most paramount thing is to keep the privacy secured.

A distinguished lawyer Victoria Blachly, has said that the beneficiaries are well defined in the will itself. Be very specific about the persons whom you desire to handle a particular set of digital assets. It is also advisable to revisit the terms of service agreements which you had agreed upon while making an account, etc. Be informed of companies’ MO and it make the task of the person so executing easier[13].

It is suggested that a written permission is better and in certain cases one specifies the disposition of the properties as per his instructions only. For example Google’s Inactive Account Manager which enables the users to handle or control emails, photos or any other document stored on certain Google websites[14]. One authorize an agent or give to a trust and if they are personal nature one can bequeath the same through a will with specific illustrations[15].

Never forget to use online data protection which are made specifically for handling and protecting the digital assets.

Conclusion

Thus, at this stage when everything keeps changing, we should also change as per the walks of life. Such thing is not only restricted to people but also lawyers. We everywhere that minutest of the property can bring strains in blood relations, digital assets is another facet altogether. Not the people should be forwarding thinking but also the government who should also protect the interest of the public by regularizing digital assets which are to be bequeathed. India is moving at a faster pace with internet reaching the villages and it’ll not be that far to see every person possessing digital assets.

[1] Protecting Digital Assets After Death: Issues to Consider In Planning For Your Digital Estate, Rachel Pinch, Wayne Law Review, 2014

[2] Digital Estates: Handling Digital Assets In The Real World (With Forms And Resources), Susan Porter, The Practical Law, August 2013, http://files.alicle.org/thumbs/datastorage/lacidoirep/forms/TPL1308_Porter_thumb.pdf

[3] Ibid

[4] Ibid 2

[5] Ibid 2

[6] Ibid 2

[7] Bequeath your digital assets too, Krishnaveni Sivagnanam, BusinessLine, October 5, 2014, http://www.thehindubusinessline.com/portfolio/your-money/bequeath-your-digital-assets-too/article6473349.ece.

[8] Ibid

[9] True Key auto-saves and enters your passwords (https://www.truekey.com/#access-features)

[10] Ibid 7

[11] Planning Steps To Protect Your Digital Assets, Steve Parrish, Forbes, Feb 18, 2014, 08:43 AM, https://www.forbes.com/sites/steveparrish/2014/02/18/planning-stepsto-protect-your-digital-assets/#2ba554bcef0c

[12] Protecting Online Assets: 9 Ways to Safeguard Your Digital Legacy, Katy Steinmetz, Time, Nov. 29, 2012, http://techland.time.com/2012/11/29/digital-legacy-assets/

[13] Ibid

[14] Ibid 11

[15] Ibid 11

The post Legal method of protecting and bequeathing your digital assets appeared first on iPleaders.

In this article, Neha Patankar who is currently pursuing Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata does an analysis of Section 66 A of the Information Technology Act in the light of the Supreme Court judgment

Introduction

Digital technology and new communication systems have made dramatic and drastic changes in our lives as most of the business transactions are being made with the help of computers. Business community as well as individuals are increasingly using computers to create, transmit and store information in the electronic form instead of old age paper documents as it is cheaper and also easy to store, retrieve and speedier to communicate. People are aware of the advantages but they are reluctant to conduct business or conclude transactions in the electronic form due to lack of legal framework. Since electronic commerce eliminated the need for paper based transactions, thus the need was felt to initiate e-commerce, therefore bringing legal provisions in order to get recognition for the same. The United Nations Commission on International Trade Law (UNCITRAL) adopted the Model Law on electronic commerce in 1996. India being signatory to it has to revise it laws as per the Model Law keeping into consideration the suitable amendments.

Objects and reasons

Business and consumers are increasingly using computers to create, transmit and store information in the electronic form. At present many legal provisions assume the importance of paper based documents which should bear signatures. The Law of Evidence is based upon paper based records and oral testimony. Since the electronic commerce eliminated the need for paper based transactions, hence to facilitate e-commerce the need was felt to bring urgent legal changes. The UNCITRAL adopted the Model Law in the year 1996 on electronic based communications. There is a need to bring suitable amendments with changing time in the existing law of our country in order to facilitate e-commerce. It is, therefore, proposed to provide legal recognition of electronic records and digital signature. It is also proposed to provide for a regulatory regime to supervise the Certifying Authorities issuing Digital Signature Certificates in order to prevent misuse arising out of transactions. It is also proposed to impose civil and criminal liabilities for contravention of the provisions. Thus, the changes were brought in order to satisfy the current needs of the country and to lessen the burden. But not all citizens use it for bonafide purpose some uses it for its malafide intention giving rise to cyber crime. Section 66 of the Information Technology Act 2000 (amendment 2008) speaks about cyber crimes. After (Amendment 2008) Section 66 A- 66F were added describing certain kinds of offences. Here in this Article we will be looking forward to Section 66 A specifically in the light of Supreme Court Judgements.

Illustrations related to Section 66 A

Basically, Cyber crime is an ‘unlawful acts in which the computer is either a tool or a target or both’. Section 66 A specifically talks about sending offensive messages. Certain illustrations which would clear the above stated are;

Pooja is Sameer’s ex-girlfriend. After their breakup Pooja married Tapan, who is unaware of Pooja’s past relationship with Sameer. Angry over this issue , Sameer sends an email to Pooja, in which he threatens that unless Pooja gives him Rs. 1lakh, he will spread news that Pooja had been pregnant before marriage. Pooja does not give him the money. Sameer sends emails to all of Pooja’s friends and relatives telling the same.

If the information about Pooja’s pregnancy is true than Sameer will not be held liable under this section. If this information is false, then Sammer will be liable under this section.
This section also penalizes the sending of emails ( this would include attachments in text, image, audio, video as well as any additional electronic record transmitted with the message) for the following purpose
Causing annoyance or
Causing inconvenience or
To deceive or to mislead about the origin of the messages

Sanjay sends emails to thousands of customers of the NatCash Bank. Thes emails request the receipt to click on a link and enter their online banking username and password at a website that appears to be that of the Bank but in reality is fake. Sanjay has spoofed the emails in such a way that they appear to have originated from the NatCash Bank official email address.

Therefore, he would be held liable under this section.

Summary of the Section 66 A

Herein below is the brief summary of the section 66 A in order to get a better understanding which is later in 2015 has been repealed by the Supreme Court in Shreya Singhal vs. Union of India.

Acts penalized under 66 A

Sending message which is offensive, menacing or false information circulated for generating hatred, ill-will, enmity, insult , injury etc. Or sending e-mails or other messages that mislead the recipient about the origin of such messages.

Punishment under 66 A

Imprisonment upto 3 years and fine.

Punishment for attempt under 66 A

Imprisonment upto 18 months and fine.

Punishment for abetment under 66 A

Imprisonment upto 3 years and fine.

Is 66 A Cognizable and Bailable

Yes.

As stated this section has been repealed by Supreme Court landmark Judgement in Shreya Singhal vs. Union of India (2013) 12 SCC 73.

Facts of the case

Two girls Shaheen Dhaba and Renu Srinivasan were arrested by Mumbai police in 2012 for expressing their displeasure for a Bandh in the wake of Shiv Sena chief Bal Thackrey’s death.
They posted some comments on Facebook in a form of expressing their displeasure.
Further they were arrested under section 66 A of the Information Technology Act, 2000 but were released later.
It was thus decided to close the criminal cases against them yet the arrests attracted the widespread public protest.
It was felt that the police has misused its power by invoking section 66 A inter alia contending that it violates the freedom of speech and expression.
Therefore the Apex Court judgement came on a batch of petitions challenging the constitutional validity of section 66 A of IT Act on the grounds of it being vague and ambiguous and further being misused by the law enforcing authorities.

Analysis of the provision

Supreme Court in the case analyzed that the said provision is curtailing the citizen’s fundamental right of Freedom of Speech and Expression, the two cardinal pillars of democracy and it being a cognizable offence is widely misused by the police authority in various states to arrest innocent persons for posting critical comments about social and political issues and about political leaders on social networking site. The court felt that it was the time to erase the provision from the law book as it has gone beyond reasonable restriction imposed by the constitution with respect to freedom of speech and expression.

Judgement

The Court held that the provision of section 66 A is contemptuous to Article 19(1)(a) and thus is arbitrary in nature which breaches the right of citizens to express its opinion freely on the internet. The 123-page long judgement which extensively discussed Indian , US and English jurisprudence on free speech , the Supreme Court struck down Section 66-A of the Information Technology Act. Justice Nariman discussed the various standards which are applicable to adjudge when restrictions on speech can be deemed reasonable, under Article 19(2) of the Indian Constitution. It was also held that the section is unconstitutional on the ground that it takes within its sweep protected speech and considered the ‘chilling effect’ on speech caused by vague and over-broad statutory language as a rationale for striking down the provision. Further, the Court held that the ‘public order’ restriction under Article 19(2) of the Constitution would not apply to cases of ‘advocacy’, but only to ‘incitement’, specifically incitement which has a proximate relation to public disorder.

Analysis of the judgement

The judgement given in this case is important in the Supreme Court’s history as it has widen the scope of freedom of speech and expression in a way of right available to express oneself freely and thus limited the scope of state in restraining the freedom in only most of the exceptional circumstances. Justice Nariman has highlighted that the liberty of thought and expression is not merely an inspirational ideal. It is also “a cardinal value that is of paramount significance under our constitutional scheme.”

Conclusion

Therefore, it can be concluded that striking down the provisions of the Information Technology Act in relation to section 66 A has not only widen the scope of the freedom of speech and expression but has also created a scope for posting pictures and comments against any person without any fear and restriction of punishment as the words such as offensive and menacing are vague and ambiguous and can be interpreted widely. Thus if a person so finds himself defamed can exercise his right by filing a complaint for defamation under section 500 of Indian Penal Code. Hence, Section 66 A provided an opportunity to genuine victims of cyber harassment to obtain immediate relief against content that may be insulting or injurious in nature, abrogation of which has now made Police authorities toothless in dealing with the growing menace of cyber bullying.

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In this article, Neha Susan who is currently pursuing Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata does an analysis of Cyber crime and social media websites.

INTRODUCTION

Social Networking sites have been in the limelight for more a decade. These websites have created an epoch in the history of cyber space influencing netizens in their personal sphere as well as professional level. Today, there are not merely medium of communication to keep in touch with old and new friends but rather have become a public forum to voice opinions and mobilise people for a global revolution. Popular social networking websites include Facebook, LinkedIn, Instagram, Twitter, Orkut. The growth and impact of these websites at an exponential rate have attracted the cyber offenders to commit cybercrimes in social media posing threat to privacy of individuals as well as national security. National Investigation Agency through its sources has informed that every sixth cybercrime in India is committed through social media. There has been around 70% rise in cybercrimes annually between 2013 and 2015 according to data provided by National Crime Records Bureau (NCRB)[1].According to a report from Symantec, a security solutions provider, India ranked second among nations that were most targeted for cybercrimes through the social media in 2014, after the US[2]. Today cybercrimes are manifested in many forms to commit offences related to privacy, defamation, misrepresentation of identity, obscenity, cyber terrorism, etc.

INFLUENCE OF CYBER CRIMES IN SOCIAL MEDIA

“Cybercrime” is a combination of two terms “crime” with the root “cyber” derived from the word “cybernetic”, from the Greek, “kubernân”, which means to lead or govern. The “cyber” environment includes all forms of digital activities, irrespective of whether they utilise single network. Cyberspace is borderless as no Courts across the globe can claim jurisdiction. Any illegal act which involves a computer, computer system or a computer network is cybercrime. Further, any offence taking place on the computer can be said to be a cyber-offence. The IT Act distinguishes between cyber contraventions and cyber offences. Former is a violation of law or rule of procedure which may or may not attract a liability to pay a penalty as the offender faces civil prosecution. However, an offence is an act prohibited and made punishable by fine and/ or imprisonment as the offender faces criminal liability^[3].

Primarily, cyber-attacks can be found in three forms. First, they attack electronic identity. With use of sophisticated malware tools, they get hold of sensitive personal information available in social media and other shopping websites; they steal credit information or create fake identity in social media. Second, attack on women and minors. Child Pornography is an industry that thrives on the growth of the cyber space. Women and children are most frequently victimised compared to men by sharing obscene pictures or violent videos in virtual world harming their reputation. Youngsters are often lured by hoax messages and fake identities in social media and they fall prey to offenders in cyberspace as well as real world. Third, attack on infrastructures. Infrastructures are often easy targets of the cyber terrorism. These attacks on vital services can paralyse a nation by causing unprecedented impact on economy, health care, military, power and more[4].

The Oxford Dictionary defines a social network as “A dedicated website or other application which enables users to communicate with each other by posting information, comments, messages, images, etc.” This could be in form of social media websites, blogs, and chat rooms. Anonymity and fake identity are the hallmark of the cybercrimes. Lack of awareness among netizens, poor security features associated with these websites and overuse of social media has enabled cyber offenders to engulf these innocent people into fraudulent or any other criminal transactions.

Cybercrimes that are commonly prevalent in social media are cyber defamation, cyber obscenity pornography, cyber stalking, hacking, privacy infringement, internet fraud, unauthorized disruption of computer system through virus and using any person’s copyright[5].

IMPACT ON PRIVACY

Privacy involves the right to control one’s personal information and the ability to determine how that information should be obtained and used. “Right to Privacy” is recognised as Fundamental Rights under Article 21 of the Constitution of India which deals with the right to life and liberty. Although, right to privacy do not find explicit mention in Constitution, this has been recognised in various judicial pronouncements. However, the ramifications of right to privacy in virtual world are not settled issue.

The possible privacy infringement in social media can be illustrated through examples of Facebook and Orkut. Orkut once touted as the one of the first popular social networking site lost its shine when Facebook came into picture. Many have not deactivated their account and hence were available in public for exploitation of sensitive personal information. Public search option available in Facebook enables the personal information of users to be exposed to anyone who types the name in the search engine. By opting ‘Public’ in privacy settings with respect to information as gender, networks, username , email id, phone number, pictures and videos poses a risk to the identity of the person. Further, use of applications and games available in social media runs a grave risk to identity of the person. These applications do not work in secure mode. They further seek access to all personal information.

Cyber-attack on social media is generally understood as an infringement of the Data Protection laws. An individual’s details like name, address, interests, family, etc. are often available on various social media web sites. In India, data protection is governed by Sections 43A, 72A, 69 and 69B of the IT Act.

Section 43A widens the scope of data protection by inclusion of definition of “Sensitive Personal Data or Information”, and also imposes a responsibility for “Reasonable Security Practice” to be followed by the data handlers. In case of infringement, data handlers and cyber offenders can be slapped with an exorbitant penalty which may even exceed Rs. 5 crores. Section 72A specifies liability for intermediary if he discloses “personal information” which he accessed while providing services under a contract and such disclosure was made with an intention to cause or knowledge that he is likely to cause wrongful loss or wrongful gain to a person. Sections 69 and 69B empower the State to issue directions for interception, monitoring and even collection of traffic data or information through any computer resource for cyber security.

LEGAL FRAMEWORK IN INDIA

Cyber Defamation

Cyber defamation refers to publication of defamatory content in electronic form. In order to determine cyber defamation, the Court has taken into consideration factors like time of occurrence, mode of publication and jurisdiction. Being borderless, determination of jurisdiction is a difficult job. In Joseph Gutnick v. Dow Jones & Company Inc., the High Court of Australia upheld that the place of publication (or the jurisdiction) is the place where the defamatory statement is made and that place is the one in which that particular information is downloaded and not where the statement is uploaded or where the publisher’s server resided[6]. Cyber defamation is punishable under Indian law by reading Section 499 of Indian Penal Code (“IPC”) and Section 4 of the IT Act. Earlier, cyber defamation was also recognised in S.66A which penalises the publication of information that is grossly offensive. However, this is struck by Supreme Court as it violates Article 19 (1) (a) of the Indian Constitution[7].

Cyber Pornography

Cyber pornography or cyber obscenity, which includes pornographic websites, pornographic magazines, provides an online medium for stimulating sexual behaviour. Earlier, the test of obscenity is the Hecklin’s test- ‘the tendency to deprave and corrupt those whose minds are open to such immoral influences’ is considered to be obscene[8]. In Ranjeet Udeshi v. State of Maharastra, the Supreme Court interpreted the word ‘obscene’ as that which is ‘offensive to modesty or decency, lewd, filthy and repulsive’[9]. Hence obscenity without a social purpose or profit cannot claim protection under ambit of the free speech. Further, in Ajay Goswami v. Union of India, the Supreme Court propounded that the test for judging a work should be that of “an ordinary man of common sense and prudence and not an out of ordinary or hypersensitive man[10]”.

ICANN (Internet Cooperation for Assigned Names and Numbers) have given formal recognition to cyber pornography with the recognition of ‘.xxx’ domain^[11]. However, child pornography is deeply condemned across the world. Inspired by Article 9 of Convention of Cyber Crime, IT Act under 67B penalises child pornography. Cyber obscenity is criminal offence. It imposes a liability on offender on the basis of Sections 66E and 67. Section 66E protects bodily privacy by imposing punishment on the person who captures pictures of private parts of a person without consent. Publication and transmission of sexually explicit content in online medium is prohibited under Section 67A.

Cyber Stalking

This includes the acts to harass or contact another in pursuance of stalking another person by keeping anonymous identity using the electronic medium. The Criminal Law (Amendment) Act, 2013 adds a new section 354D to penalise stalking.

Fradulent Transactions And Misrepresentations

Impersonation is one of the most widely seen fraudulent transactions in social media. Social Networking websites are replete with fake profiles which are created with the sole purpose of taking out information and other personal details like bank account number, credit card number.

Virus Attack

Virus attack is generally executed by sending messages on social networking websites or asking the person to open the link the computer. Virus contamination destroys, alters, damages data residing in computer or cloud. Section 43 (c) of the IT Act imposes liability upon the offender to pay compensation to the person who is affected by introduction of any computer contaminant or virus into any computer, computer system or computer network.

Hacking

Hacking is usually a premeditated process, where the hacker studies security features of the target and develop programs pursuant to it, to gain unauthorized access. In simple terms, hacking means trespass in virtual world. Section 43 of the IT Act imposes punishment for unauthorized access to a computer resource committed “dishonestly or fraudulently”. Here, the aggrieved party must prove mens rea.

OTHER PREVENTIVE MEASURES

In order to improve cyber security various precautionary steps can be kept in mind by netizens. These include:

Always avoid sending any photograph online particularly to unknown friends or strangers in order to avoid misuse of photographs.
Always update anti -virus software to guard against virus attacks.
Backing up files enable to prevent data loss due to virus attack.
Payment made for accessing games and applications in social networking sites must be made in secure payment system to avoid invasion of credit information.
Kids must be given awareness classes about the social media cybercrimes.
Security programme that gives control over cookies must be preferred.
Website owners and intermediaries must monitor traffic and regulate any abnormality on the website.

CONCLUSION

Cybercrimes have been menacing the social media since its inception. This is manifested in form of fraudulent transactions, hacking, virus attack, cyber defamation and cyber stalking. Even though India has effective laws to deals with these crimes, the conviction rate is negligible. Cyber Forensics is a growing area. It must be promoted to determine methods to detect Cyber Evidence. Further, necessary amendments must be made in Indian law to be read harmoniously with IT Act in order to control Cybercrimes.

[1] Every Sixth Cybercrime In India Is Committed Through Social Media:NIA http://www.hindustantimes.com/india-news/every-sixth-cybercrime-in-india-committed-through-social-media-nia/story-KscgnwjcTZ0pzVeVaOiN6M.html (Last accessed on 26 February 2017).

[2] India ranks second in cyber attacks through social media Yuthika Bhargava April 22, 2015http://www.thehindu.com/news/national/india-ranks-second-in-cyber-attacks-through-social-media/article7130961.ece

[3] 4 Section 2(n) of the Code of Criminal Procedure, 1973 and Section 40 of Indian Penal Code, 1860.

[4] A Study on Cyber Crime and Security Scenario in INDIA Yougal Joshi1 , Anand Singh International Journal of Engineering and Management Research, Volume-3, Issue-3, June 2013

http://www.ijemr.net/DOC/AStudyOnCyberCrimeAndSecurityScenarioInINDIA(13-18)48f66c6f-4d11-4f64-95ec-a3600f6cd9d3.pdf

[5] Legal Implications of Cyber Crimes on Social Networking Websites , Nikita Barman, International Journal of Scientific and Research Publications, Volume 5, Issue 12, December 2015 http://www.ijsrp.org/research-paper-1215/ijsrp-p4850.pdf

[6] Joseph Gutnick v. Dow Jones & Company Inc. [2001] VSC 305.

[7] Sreya Singhal v. Union of India AIR 2015 SC1523.

[8] Regina v.Hicklin (1868) 3 QB 360.

[9] Ranjeet Udeshi v. State of Maharastra AIR 1965 SC 881

[10]Ajay Goswami v. Union of India (2007) 1 SCC 169.

[11] “Here it comes: Porn sites to get .xxx”, Times of India, 26-06-10,

http://timesofindia.indiatimes.com/world/europe/Here-it-comes-Porn-sites-to-get-xxx-name/articleshow/6092763.cms

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In this article Aishwarya Borgohain of University School of Law and Legal Studies, GGSIPU discusses Acquisition of a Listed Company – the Procedure as Laid Down in the Takeover Code.

Introduction

The Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 2011 (hereinafter referred to as the “Takeover Code”), is the Code of regulations that has brought the Indian legal framework further in line with international jurisprudence, emphasizing as it does the interests of public shareholders and investors, as well as the operation of the Indian securities market in a fair, transparent and equitable manner.

Acquisition – new scope within the Code

Definition of ‘acquisition’: referring to the purchase by a party of the controlling interest in the share capital or assets and liabilities of the target company, the definition has now been provided in the Code by SEBI, and means directly or indirectly, acquiring or agreeing to acquire shares or voting rights in, or control over, a target company.
Direct and indirect acquisition: While the former refers to a situation where the acquirer directly acquires shares/voting rights or control over the target company, the latter refers to any acquisition or control over any company/entity that would enable a person to exercise or direct exercise of such percentage of voting rights or control, as would otherwise attract obligations to make a public announcement of an open offer.

Listed Company as under the Takeover Code

Provisions of the Code pertain to the ‘target company’, which means a company, including a body corporate or Central/State/Provincial legislation corporation, whose shares are listed on a stock exchange. Reference may be drawn here to the Companies Act, which similarly defines listed companies as those having their securities listed on any recognized stock exchange.

The Open Offer Process as laid down in the Takeover Code

Appointment of Manager to the Open Offer

Done prior to making of the public announcement
Manager must be a merchant banker registered with the Board, and not an associate of the acquirer
Acquirer may appoint a registrar to the offer, and shall engage other legal and financial advisors.

Public Announcement of Open Offer (‘PA’)

Acquirer and persons acting in concert (‘PAC’), holding shares in target company entitling them to exercise 25% or more (but less than maximum permissible non-public shareholding) shall be entitled to make such announcement.
PA contains details as may be specified, including:- name of acquirer and PAC, sellers, nature of proposed acquisition, consideration, offer price, mode of payment, and the offer size.
Made on the date of agreeing to acquire shares or voting rights in, or control over the target company
Publication of PA to all stock exchanges on which the shares of the target company are listed, which shall then be disseminated by the latter to the public.
Copy of the PA to be sent to the Board and to the target company’s registered office

Creation of Escrow Account

No later than two working days prior to the date of the Detailed Public Statement of open offer (‘DPS’)
Account may be in the form of cash deposited in commercial bank, bank guarantee, or deposit of freely transferable securities or equity shares.

DPS of Open Offer made

Contains justification for any differential pricing
Published by acquirer through manager, not later than 5 working days of PA
Not required if acquirer doesn’t succeed in acquiring the ability to exercise or direct the exercise of voting rights in, or control over the target company.
Publication in all editions of one English, Hindi, and regional daily (at the place of registered office of the target company) with wide circulation, and simultaneous copy to be sent to the Board, all stock exchanges where the target company’s shares are listed, and to the target company itself, which shall circulate it to its Board members.

Filing of Letter of Offer with the Board (‘LOO’)

The LOO Contains justifications for offer price for equity shares, for differential pricing, and full disclosures of all subsequent stages of acquisition.
Draft LOO filed by acquirer within 5 working days from date of DPS. The Board is to give its comments on the draft not later than 15 working days of its receipt If no comments are issued within such period, it shall be deemed that the Board has no comments. Any changes specified by the Board shall be carried out by the acquirer before dispatching of LOO.
Simultaneous copy of draft LOO is to be sent to the target company at its registered office address, and to all stock exchanges where shares are listed.
Manager to open offer shall simultaneously furnish a due diligence certificate to the Board
Dispatch of Final LOO: The LOO shall be dispatched to shareholders not later than 7 working days from receipt of any Board comments. However, the LOO shall not be dispatched if where local laws or regulations of any jurisdiction outside India may expose the acquirer or the target company to material risk of civil, regulatory or criminal liabilities.

Revision of Open Offer

In such event, the acquirer shall make corresponding increases to amount in escrow account, make announcements in all newspapers where DPS was made, and simultaneously inform the Board and all the stock exchanges, as well as the target company itself, at its registered office.
Upward revisions may be made by acquirer at any time before the last 3 working days before the tendering period commences.
Fees payable on shall be paid within 5 working days from date of such revision.
Value of escrow amount shall be computed on revised consideration calculated, in the event of upward revision.

Tendering Period

It refers to the period within which shareholders may tender their shares in acceptance of an open offer to acquire shares.
Acquirer issues advertisement one day before the commencement of the tendering period the schedule of activities for open offer, statutory and other approvals, and procedure for tendering acceptances, among other such material details.
This Period starts not later than 12 working days from receipt of comments from Board, and remains open for 10 working days.

Disclosure of Acquisition during the Offer Period

Made within 2 working days of receipt of intimation of allotment/ acquisition of shares or voting rights in target company
Made by acquirer and PAC, whose total shares/voting rights aggregate to 5% or more of such shares in the target company.
Disclosed to every stock exchange where shares are listed, and to the target company at its registered office.
Chapter V further provides for continual disclosures -made by every person and PAC holding shares entitling them to exercise 25% or more of voting rights in the target company, as on the 31st of March– and disclosure of encumbered shares, made by the promoter of every target company.

Post-Offer Advertisement

Issued by acquirer within 5 working days of offer period (contains details of shares tendered, accepted, date of payment of consideration.)
Published in all newspapers where DPS was made, and simultaneously sent to the stock exchanges, to the Board, and the target company.

Completion of Acquirer’s Obligations

Within 10 working days of the last date of the tendering period, the acquirer shall complete all requirements (including payment of considerations) under these regulations, and applicable law.

Payment of Consideration and Completion of Acquisition

The acquirer opens special escrow account with a banker, for the amount of consideration payable in cash, and empowers the Manager to the Offer to operate the account on his behalf.
Acquirer shall complete payment of consideration to shareholders within 10 working days of the expiry of the tendering period. Any unclaimed balances lying in such account at the end of 7 years from date of deposit shall be transferred to the Investor Protection and Education Fund.
The acquirer shall complete the acquisitions within 26 weeks from the expiry of the offer period. However, an extension may be granted by the Board in the event of extraordinary and supervening circumstances rendering such completion impossible.

Withdrawal of Open Offer

While withdrawals are generally not made, the Code provides certain exceptions, such as refusal of statutory approvals required for open offer, death of the acquirer, any condition stipulated in the acquisition agreement.
Such a withdrawal has to be announced in all the newspapers in which the DPS was made, and duly disclosed to the Board, all the relevant stock exchanges, and to the targeted company.

Finally, the Board has been given power to issue directions in case of violation of any regulations. These include, among others:

Directing disvestment of shares acquired in violation of these regulations
Directing transfer of such shares to the IPEF
Directing any person to cease and desist from acquiring control over target company without complying with requirements
Debarring any person who has violated the Takeover Code from accessing the capital market or dealing in securities

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In this article, Akshay Sharma discusses important judicial decisions on the issue of Triple Talaq.

Introduction

Triple Talaq is one of the most controversial issues prevalent in the country till and the stand of the judiciary was never the same over the issue of Triple Talaq. It always keep changing which some courts upholding the validity of the Triple Talaq and some did not. Various Women Organizations for long have been fighting for the rights of the Muslim women and contending that the Triple Talaq is unconstitutional in nature and violates the Fundamental rights of the women.
The matter was not so voiced during the UPA regime from 2004-2014. But with the advent of the right wing Party at the Centre and BJP taking up vociferously the issue of Triple Talaq during UP elections, the issue took up pace these with the matter being heard by the Constitution Bench of Supreme Court and the Judgement being reserved.
This appeal also deals with the procedure of communicating triple Talaq and since it is appeal the Hon’ble Court didn’t discuss the legality of Triple Talaq.
“Divorce is most detestable in the sight of God; abstain from it, Divorce shakes the throne of the God.”[1] disapproved form of divorce is talaq by triple declarations in which three pronouncements are made in a single tuhr, either in one sentence. Such a talaq is sinful in Hanafi law.[2]
The law of divorce whatever its utility during the past, was so interpreted at least in Hanafi school that it had become a one sided engine of oppression in the hands of the husband.[3] As The Prophet of Islam did not favour the institution of talaq, the revocable form of talaq are considered as the approved and the irrevocable forms are treated as the “disapproved” forms.[4]

If he abandons his wife or puts her away in simple caprice, he draws upon himself the divine anger, for the curse of God, said the Prophet, rests on him who repudiates his wife capriciously. In other Islamic State, where the husband must satisfy the court about the reasons for divorce.

Judicial Pronouncement On Triple Talaq

Talaq-ul- biddat is sinful in the Islamic law

In the case of Rahmtullah v. State of UP[5], Hon’ble Justice Tilhari of the Allahabad High Court observed that;

“talaq-ul-bIddat, that is giving an irrevocable talaq divorce at once or at one sitting or by pronouncing it in a tuhr once in an irrevocable form, without allowing the period of waiting for reconciliation or without allowing the will of Allah to bring about reunion, by removing difference or cause of difference and helping the two in solving their differences, runs counter to the mandate of the Holy Quran and has been regarded as by all under Islam-Sunnat, to be sinful.”

In the case of Yousuf Rawther v. Sowramma,[6] Justice Krishna Iyer held that the triple Talaq is against the spirit of Holy Quran and that power of divorce is in the hands of the Muslim men. It is the misinterpretation which has led to the practice of the custom of triple Talaq.

Triple Talaq is a Unilateral form of Divorce

In the case of Mst. Zohara Khatoon v. Mohd. Ibrahim[7], the Hon’ble Supreme Court noted that, “there can be no doubt that under the Mohammedan law the commonest form of divorce is a unilateral declaration of pronouncement of divorce of the wife by the husband according to the various forms recognized by law. A divorce given unilaterally by the husband is especially peculiar to Mohammedan law. In no other law has the husband got a unilateral right to divorce wife by a simple declaration”

The Triple Talaq in this form not only makes Muslim women victims of arbitrary and whimsical decisions of their husbands, but being unilateral in nature, it also robs them of the liberty to choose the form of divorce they want.

Triple Talaq is unlawful

In Qur’an commentary of well-known author Ibn Kathir,[8] it is commented as follows

“Pronouncing Three Divorces at the same Time is Unlawful The last Ayah we mentioned was used as evidence to prove that it is not allowed to pronounce three divorces at one time. What further proves this ruling is that Mahmud bin Labid has stated as An-Nasar recorded – that Allah’s Messenger was told about a man who pronounced three divorces on his wife at one time, so the Prophet stood up while angry and said “The Book of Allah is being made the subject of jest while I am still amongst you?” A man then stood up and said, “Should I kill that man, Messenger of Allah?”

In the recent case of Smt. Beena and Another v. the State of UP & others,[9], Justice Suneet Kumar of Hon’ble Allahabad High Court held that;

“The instant divorce (Triple Talaq) though has been deprecated and not followed by all sects of Muslim community in the country, however, is a cruel and the most demeaning form of divorce practiced by the Muslim community at large. Women cannot remain at the mercy of the patriarchal setup held under the clutches of sundry clerics having their own interpretation of the holy Quran. Personal laws, of any community, cannot claim supremacy over the rights granted to the individuals by the Constitution.”

Conditions of a Valid Triple Talaq

In the case of Sayid Rashid Ahmed v. Anisa Khatun[10], Justice Baharul Islam observed that, “Reasonability as an essential for Talaq; Reconciliation attempts by the elders or the well-wishers of the family to be of utmost importance before commencement of Talaq” and “ it may be effected” if the said effects fails. An attempt at reconciliation by two relations one each of the parties, is an essential condition precedent to talaq.[11]

Talaq should be preceded by the reconciliation attempts. In the case of Rukia Khatun v. Abdul Khalique Laskar,[12] it was held that Talaq was only to be pronounced after failed attempts between the husband and the wife, after each appointed an arbitrator to solve the dispute. Without reconciliation, the commencement of divorce is held to be in contempt with the saying of the Holy Quran. This observation was upheld by the Justice Badar Durrez Ahmad of the Delhi High Court in the case of Masroor Ahmad v. State (N.C.T of Delhi) & Another,[13] and he further held that;

“Reconciliation before the procedure of the divorce is of utmost importance and is in concurrence with the Holy Quran. It is of utmost necessity to follow the procedure of divorce as written in Quran and proper reasoning to be given before the commencement of the Divorce”

There Must Be A Reasonable Cause

The Hon’ble Supreme Court in the case of Shamim Ara v. State of UP,[14] held that the correct law of divorce as ordained by Holy Quran is that Talak must be for reasonable cause; and it must be preceded by an attempt of reconciliation between the husband and the wife by two arbitrators. Therefore, the factum of divorce is required to be proved by the husband including the condition precedent there. The Kerala High Court in the case of Mohammed Haneefa v. Pathummal Beevi,[15] denounced the practice of Triple Talaq and declared it as the “sufferings of monstrosity for Muslim wives”.

The correct law of Talaq as ordained by the Holy Quran is that Talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters– one from the wife’s family and the other from the husband’s; if the attempts fail, Talaq may be effected.[16]

Triple Talaq must be Preceded by Process of Conciliation

Furthermore, in the case of Dilshad Begum Ahmedkhan Pathan v. Ahmad khan Hanif Khan Pathan & Anrs,[17], the Bombay High Court held that mere pronouncement of Talaq by the husband or merely declaring his intention or his acts of having pronounced Talaq is not sufficient and does not meet the requirements of law. In every such exercise of right to Talaq the husband is required to satisfy the precondition of arbitration for reconciliation and reasons for talaq.

In the case of Kunhimohammed v. Ayishakutty[18], the division Bench of the Kerala High Court after reviewing the earlier precedents and the authorities of Muslim law held that;

“Following the decision of the Supreme Court Shamim Ara (supra) and decision of the Division Bench in Ummer Farooque (supra), it is evident that compliance with the mandate of Ayat 35 of Sura IV that two arbiters must be appointed and an attempt for reconciliation by them must precede the divorce is an essential, non-negotiable and unavoidable pre-requisite.”

Hence, there are following conditions which need to be fulfilled before pronouncing the Triple Talaq;

Conveying the Reasons for Divorce to wife;
Appointment of Arbitrators;
The Arbitrators resorting to conciliation Proceedings.[19]

Only after the failure of the reconciliation proceedings or a situation where it is impossible for the marriage, the husband can pronounce the divorce to the wife.[20]

Judicial Pronouncement upholding the validity of Triple Talaq

In the case of Saiyid Rashid Ahmed v Anisa Khatun,[21] the Court approved the views of Sir R. K. Wilson, in his digest of Anglo Mahomaden Law (5th Edition) that “triple talaq though sinful is a valid form of divorce under talaq-e-bidat.” The High Court in the case of In Re: Abdul Ali Ishmailji,[22] said that “talaq-e-bidat, which is effected by three repudiations at the same time, appears from the authorities to be sinful, but valid.”

The Court recognized talaq-e-bidat to be valid under law. Also, in the case of Sarabai v. Rabiabai,[23] the High Court viewed that “there can be no doubt that a talaq-e-bidat or irregular divorce is good in law though bad in theology.”

Furthermore, in the case of Amiruddin v. Musammat Khatun Bibi,[24] the High Court held that:

“Basically Sunna sanctions only two modes of divorce, but since the second century of the Mahomaden Era talaq-e-bidat has been recognized as a valid mode of repudiation and once pronounced cannot be revoked.”

In Masrat Begum v. Abdul Rashid Khan,[25] reference was made to Hedaya, Commentary on Islamic Laws by Shyakh Burhanuddin Abu-Bakr-al-Marghinan, which states that:

“If a husband gives three divorces at once, the thee hold good but yet the divorcer is an offender against the law.” The Hon‟ble Supreme Court in the case of Zohara Khatoon v. Mohd. Ibrahim,[26] observed that “unilateral declaration of pronouncement of divorce is the commonest form of divorce in Mahomaden Law and has to be accepted as being legal.”

In the matter of Amad Giri v. Mst. Begha,[27] the High Court observed that: “The talaq-e-bidat is the most prevalent form of obtaining divorce in India. Any changes in this respect cannot be brought about by judicial interpretations.”

Conclusion

Triple Talaq being a practice related to the Muslim community, the judiciary was always reluctant to decide upon the matter authoritatively and thats why there is such a huge disparity among the decisions of various courts. The solution to all these can be a decision by the Constitution Bench which heard the matter on a daily basis and reserved the judgement, with the pronouncement of this judgement the law regarding Triple Talaq can be settled for once and forever.

Understanding Injunctions

An injunction is a court order, that requires a person to do or abstain from doing an act that is necessary in terms of justice, and the absence of which would be contrary to good faith and good conscience. Basically, the grant of an injunction, aims to restore the violated rights of a party, whereby monetary or compensatory damages are insufficient. It follows the principles of Natural Justice and Equity. The concept of injunction, is a fairly simple one, and the relief granted, is a preventive one. Historically, the law of injunction finds its origin in English Jurisprudence, and comes from the French word ‘injungere’, which translates to ‘to join’. It finds its origins in Indian law through several Indian Statutes. To specify, the statutory provisions for injunctions, according to the required law, are present in CrPC (for Criminal cases), CPC and the Specific Relief Act (for Civil matters). Each of these statutes provide for some form of injunction, depending on the situation and the case.

An injunction rarely survives as an independent legal entity. In most circumstances, it comes as an addition to another remedy.

For example, if ‘A’ rents an apartment to ‘B’, who is a tenant, and ‘B’ fails to pay the rent, ‘A’ may request the court to grant an injunction against the tenants continued use of the property.

The granting of an injunction is a relative one. Basically, the approval for an injunction would vary from case to case and situation to situation, and at the discretion of the court. There are primarily two kinds of injunctions. They are: (a) Temporary Injunction and (b) Permanent Injunction.

Temporary Injunction

A temporary injunction is a provisional relief that aims to protect the subject matter in the existing condition, without the defendant’s interference or threat. It aims to protect the plaintiff from getting disposed off, or his property (subject matter) being destroyed or harmed, or from any injury to the plaintiff. The primary reason behind a temporary injunction is to protect the interests of an individual or entity, till the final judgement is passed. A temporary injunction, when granted, continues to remain for a specified period of time, or till the court deems fit.

When can Temporary Injunction be granted?

The temporary injunction may be granted, subject to three tests:

whether the plaintiff has a prima facie case?
whether the balance of convenience is in favour of the plaintiff? And
whether the plaintiff would suffer an irreparable damage, if the injunction is not granted? Now, to explain these points, lets look into some illustrations:

ILLUSTRATION: ‘A’ is a merchant who has a food processing factory located in Bandra, in Mumbai, India. In front of his factory, one of the neighbouring factory workers (‘B’) started duping waste, which ultimately lead to the food getting spoilt. ‘A’ filed a suit against ‘B’, whereby the court agreed to a temporary injunction, which prevented ‘B’ from dumping more waste.

Now, using this illustration let us explain the three conditions:

WHETHER THE PLAINTIFF HAS A PRIMA FACIE CASE?

From this illustration, it is evident that ‘A’ is suffering from a significant problem, as it indirectly affects his livelihood. Therefore, it is prima facie evident that the grant of an injunction is important.

WHETHER THE BALANCE OF CONVENIENCE IS IN FAVOR OF THE PLAINTIFF?

In the above illustration, no matter who reads it, it is a common contention that the Plaintiff is suffering a damage, due to which the scales of justice in his side is heavier. Therefore, it is clear that the balance of convenience is tilted towards the Plaintiff.

WHETHER THE PLAINTIFF WOULD SUFFER AN IRREPARABLE DAMAGE IF THE INJUNCTION IS NOT GRANTED?

In a situation where the court would have disagreed to grant the temporary injunction in favour of the Plaintiff, the food products in his factory would be destroyed, thereby affecting his income and causing great loss. Therefore, it is clear that the Plaintiff would have suffered an irreparable damage to his goods.

WHAT IS A PERMANENT INJUNCTION?

A permanent injunction (also known as perpetual injunction) is one that is delivered at the time of the final judgement, and therefore is more often than not, prevalent for a longer period of time. In this scenario, the Defendant is perpetually restrained from the commission of an act, or the abstinence from the commission of an act, which would defeat the interests of the Plaintiff.

WHEN CAN A PERMANENT INJUNCTION BE GRANTED?

Section 38 of The Specific Relief Act, 1963 provides the situations where Perpetual Injunctions can be granted, and states that:-

(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.

(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.

(3) When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:

(a) where the defendant is trustee of the property for the plaintiff;

(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;

(c) where the invasion is such that compensation in money would not afford adequate relief;

(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.

To simplify these points, let us use some illustrations:

Section 38(1): Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.

Ram is a tenant at Shyam’s flat. Shyam has specifically asked Ram to not displace the prayer room, as it had a gold statue of a deity. Ram wilfully disobeyed and tried to remove the statue.

Here, the court may grant a permanent injunction, in order for Ram to fulfil the request of Shyam.

Section 38(2): When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.

Aryan is the co-founder of a company X. He breaches the clauses of the company rules and therefore, creates a risk of potential damage to the company’s reputation. Ayesha is the co-founder of company X too. She may attain an injunction to prevent Aryan from doing an act that would eventually aid to the destruction the reputation of the company.

Section 38(3): When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:

(a) where the defendant is trustee of the property for the plaintiff;

Seema owns a farmhouse in Dheradun. Emily is a trustee of the property and engages in some illegal activities. Here, Seema may seek an injunction to prevent further illegality.

(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;

Ayush has a three year tenancy lease at Dev’s house. Upon the expiry of such lease, Dev wanted to move back to his house. However, Ayush refused to leave or pay rent. Dev may seek an injunction as there may be a risk of him being homeless and suffer huge losses.

(c) where the invasion is such that compensation in money would not afford adequate relief;

Arjun, Karan’s school friend rents an office space from him, to set up an office. Being his friend Karan agrees to the same. However, Arjun refuses to pay rent and does not clear his dues. There is a lag of 8 months, with leads to heavy losses for Karan. He is entitled to seek an injunction in order to stop Arjun from using the office space.

(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.

Arya has 7 tenants, out of which, 5 tenants have failed to pay the rent for 5 months, consecutively. She files a suit against all of them, with the same cause of action. The court may allow an injunction, in order to prevent multiple proceedings, simultaneously.

MAJOR DIFFERENCES BETWEEN PERMANENT AND TEMPORARY INJUNCTIONS

A temporary injunction is granted for a specified period of time, or as adjudged by the court. It may be granted at any point during the suit.

A permanent injunction, on the other hand, is granted by the decree of the court, and upon the examination of the facts and merits of the case.

Order 39 (Rules 1 to 5) of the Civil Procedure Code, 1908, governs temporary injunctions.

Whereas, permanent injunctions are governed by sections 38 to 42 of The Specific Relief Act, 1963.

A temporary injunction is non-conclusive. Basically, it is a temporary order, rather than a permanent solution.

A permanent injunction, on the other hand, deals with the finality of a judgement, thereby providing a conclusive and long term solution to the dispute at hand.

A temporary injunction may only focus on the Plaintiff’s side of the case and therefore may be one-sided. However, it is important to understand, that this is not always so.

A permanent injunction, on the other hand, focuses on the Plaintiff as well as the Defendant. It hears both parties, and then provides a solution.

A temporary injunction, being temporary in nature, may be revoked by the court that passes the injunction order.

However, a permanent injunction is non-revocable by the court that decides to pass such order. However, it may be revoked by an appellate or higher court.

A lack of immediate response or request by the Plaintiff may lead to a dis-approval of the grant of an injunction order.

On the other hand, a permanent injunction order allows the parties to explain, elaborate and provide for details at a later and more relaxed pace, provided there are sufficient and valid grounds for the same.

A temporary injunction is simply an order by the court.

A permanent injunction is a decree (i.e., an official order by a court of law).

CONCLUSION

An injunction is a preventive relief that tries to look into the interests of both the parties. It tries to create a situation, where one party does not harm or interfere into the rights and authorities of the other party. Though an injunction is not a self-dependent relief, it is often very important for the protection of rights. Both permanent and temporary injunctions have their own perks and privileges, that are unique to every situation. It is essential to understand one’s situation and then move forward with the relief that suits them best. While doing the same, it must always be kept in mind that an injunction order is nor a right in itself, however, its denial is in the sole discretion of the courts.

SAMPLE FORMAT OF A TEMPORARY INJUNCTION ORDER

(Title)

Upon motion made unto this Court by……… Pleader of [or Counsel for] the plaintiff A. B., and upon reading the petition of the said plaintiff in this matter filed [this day] [or the plaint filed in this suit on the .. ……… day of………. or the written statement of the said plaintiff filed on the…….. day of………] and upon hearing the evidence of…. ….. and……… in support thereof [if after notice and defendant not appearing: and, and also, the evidence of……… as to service of notice of this motion upon the defendant CD.]: This Court doth order that an injunction be awarded to restrain the defendant CD., his servants, agents and workmen, from pulling down, or suffering to be pulled down, the house in the plaint in the said suit of the plaintiff mentioned [or in the written statement, or petition, of the plaintiff and evidence at the hearing of this motion mentioned], being No. 9, Oilmongers Street, Hindupur, in a Taluk of……… and from selling the materials whereof the said house is composed, until the hearing of this suit of until the further order of this Court.

Dated this……… day of……… 19….

Judge

[Where the injunction is sought to restrain the negotiation of a note or bill, the ordering part of the order may run thus:-]

……… to restrain the defendant……… and……… from parting without of the custody of them or any of them or endorsing, assigning or negotiating the promisory note [or bill of exchange] in question, dated on or about the ………, etc., mentioned in the plaintiff s plaint [or petition] and the evidence heard at this motion until the hearing of this suit, or until the further order of this Court.

[In Copy right cases]

……to restrain the defendant CD., his servants, agents or workmen, from printing, publishing or vending a book, called…… or any part thereof, until the, etc.

[Where part only of a book is to be restrained] … .to restrain the defendant CD., his servants, agents orworkmen, from printing, publishing, selling or otherwise disposing of such parts of the book in the plaint [or petition and evidence, etc.] mentioned to have been published by the defendant as hereinafter specified, namely, that part of the said book which is entitled ….. and also that part which is entitled….

[or which is contained in page…… to page …. both inclusive] until…… etc. [In Patent cases] ………

to restrain the defendant C. D., his agents, servants and workmen, from making or vending any perforated bricks [or as the case may be] upon the principle of the inventions in the plaintiff’s plaint [or petition, etc., or written statement, etc.,]

mentioned, belonging to the plaintiffs, or either of them, during the remainder of the respec-tive terms of the patents in the plaintiffs plaint [or as the case may be] mentioned, and from counterfeiting, imitating or resembling the same inventions or either of them, or making any addition thereto, or substraction therefrom, until the hearing, etc.

[In cases of Trade marks]

……… to restrain the defendant C.D., his servants, agents or workmen, from selling, or exposing for sale, or procuring to be sold, any composition or blacking [or as the case may be] described as or purporting to be blacking manufactured by the plaintiff A.B., in bottles having affixed thereto such labels as in the plaintiffs plaint [or petition, etc.] mentioned, or any other labels so contrived or expressed as, by colourable imitation or otherwise, to represent the composition or blacking sold by the defendant to be the same as the composition or blacking manufactured and sold by the plaintiffA.fi., and from using trade-cards so contrived or expressed as to represent that any composition or blacking sold or proposed to be sold by the defendant is the same as the composition or blacking manufactured or sold by the plaintiffA.fi., until the, etc.

[To restrain a partner from in any way interfering in the business]

to restrain the defendant CD., his agents, and servants, from entering into any contract, and from accepting, drawing, endorsing or negotiating any bill of exchange, note or written security in the name of the partnership firm of fi. and D., and from contracting any debt, buying and selling any goods, and from making or entering into any verbal or written promise, agreement or undertaking, and from doing, or causing to be done, any act, in the name or the credit of the said partnership-firm of B. and D., or whereby the said partnership-firm can or may in any manner become or be made liable to or for the payment of any sum of money, or for the performance of any contract, promise or undertaking until the, etc.

Indian Air Force

The Indian Air Force is the airborne part of the Indian military and they account for the fourth largest in terms of officials and aircrafts. It assures access to bleeding edge technology and comprises of the best minds of Indian Defence Forces.

The Air Force has three branches i.e., Flying branch, Ground Duty Branch and Technical Branch. While personnel of the flying branch actually fly the planes on military operations and battles, the main duty performed by ground duty personnel are meteorological and ground control functions. The officers on ground duty need to inform the flying branch regularly of the weather branch for uninterrupted successful operations. The members of this branch are concerned with the maintenance and of aircrafts and related equipment of the Air Force.

Why should one select the Indian Air Force as a career

These are many reasons due to which one may choose to join the Indian Air Force, some of which are that it offers a life of adventure and also the personnel get to work and interact with bleeding edge latest military technology. The enrolled persons are offered a glowing social status, a handsome salary and other miscellaneous facilities. The personnel are also taught how to handle difficult and challenging situations. They are also trained on how to command the personnel below them, i.e., how to be a leader.

While these are only some of the reasons of joining the Indian Air Forces, the most important reason is proudly and selflessly working for ensuring the safety and security of mother India.

Career opportunities for Law Graduates in I.A.F.

Law Graduates are eligible only for Ground duty branches of the Indian Air Force.

The ground duty branch officers have the job of effectively managing both the men and resources available with the Air Forces. Work includes calculating and managing the pay of Air-Force employees and also maintaining the inventories of the Air Force equipment. These branches can be enumerated as under:-

Administrative Branch
Accounts Branch
Logistics Branch
Education Branch
Meteorology Branch

However, law graduates(both 3 and 5 years) are only eligible for Administrative, Logistics and Education(Post Graduates only) branch.

Administrative Branch

Effective management and upkeep of the material resources and personnel is the primary job available to the administrative branch.. The following additional duties are assigned to the officers in the administrative branch:-

Air Traffic Control:-

They ensure proper airspace management and also undertake the responsibility for a unrestricted flow of air traffic.

Flight Control:-

They are mainly posted to the locational placement of Air Defence Radar units. For effective airspace management they ensure flow of proper radio traffic between the ground units and planes.

Eligibility criterion

The age of a candidate has to be between 20 to 23 years and in case of post graduates(including 5 years integrated LL.B.) the age range is 20 to 25 years. In the case of law graduates doing 3 years LL.B. after graduation the age limit is one year more than the integrated course’s limit.
Unmarried status is mandatory for appliers below 25 years of age.
Candidates must be Indian nationals.
This post can be held by both men and women.
A mandatory post graduation degree or a graduation degree with minimum aggregate of 60% is a mandatory requirement for a candidate to be eligible.

Logistics Branch

An officer stationed in the Logistics Branch has the responsibility to undertake essential management of the I.A.F. resources of any unit where he/she is posted. These resources include food, clothing, expensive aircraft equipment, building material etc. These officers have the important responsibility of maintaining a roster and chart of the availability and access to all the material resources available.

Eligibility Criterion

Age: Eligibility age ranges from 20 to 23 years of age in case of graduates and 20 to 25 years for post-graduates /LLB (in case of Five years integrated course) and 20 to 26 years for law graduates (i.e., 3 years course after graduation)
Marital Status: Candidates below 25 years of age must be unmarried.
Nationality: Candidates must be Indian nationals.
Gender: Both men and women are equally eligible for the post..
Educational Qualifications: Graduation degree in any discipline with a minimum 60% marks in aggregate in all papers put together or Post Graduation degree or equivalent diploma in any discipline with minimum 50% marks in aggregate in all papers put together.

Education Branch(Only for post-graduates)

An officer posted in the Education Branch performs all duties related to the study and educational requirements of the Air Force employees. An education officer primarily oversees the training of personnel, supervise and manage the air force libraries and information rooms.

Eligibility Criterion

Age: 20 to 25 years for post graduates, 20 to 27 years for M.Ed and Ph.D.

Marital Status: Candidates below 25 years of age must be unmarried.
Nationality: Candidates must be Indian nationals.
Gender: Both men and women are eligible for the post.
Educational Qualifications: Post Graduate Degree in any discipline with a minimum of 50% aggregate in all papers put together.

Physical standards to meet for persons employed in ground duty branches

Anyone being employed as an officer in the IAF must be both physically and mentally fit for improved and enhanced performance. The general guidelines are listed below.

Good physical and mental health.
Should be free from any disease or disability.
There should be no disease of bones.
No past medical history of mental illness or fits.
The hearing should be normal without any present or past disease of ear, nose and throat.
The candidate should not have any functional or organic disease of heart and blood vessels with normal blood pressure.
The abdominal muscles of the candidate should be well developed. There should be no enlargement of liver or spleen.
An un-operated hernia can be cause for rejection. The operation, if any, should have been done six months earlier prior to the examination date.
Any skin disease likely to cause any abnormality could cause rejection of the candidate.
There should be natural 20/20 vision.
There should be sufficient and sound teeth.

All about AFCAT

AFCAT or Air Force Common Admission Test is the entrance exam conducted for selection into the ground branch and other branches of the I.A.F.

It hires mainly for three branches –

Ground Duty Branches
Flying Branch
Technical Branch

Syllabus

The test is of a 2 hour duration consisting of 100 questions covering areas of mental aptitude, verbal questions, numericals, general knowledge and military aptitude.

The General Awareness section consists of topics like Indian and International history, Sports knowledge, world geography, environment, politics, culture, Art etc. The Verbal Ability part will have questions based on general comprehension, Synonyms and antonyms, vocabulary tests, completing sentences etc. The numerical ability section consists of questions on simple and general mathematical aptitude. The reasoning section tests the spatial ability of a prospective candidate.

Pay Scale

Ground duty officers will be entitled to a basic pay grade of Rs. 15,600 – 39,100 per month along with

Approximate gross allowance of Ground Duty Branches amounts to Rs. 68,550/-

Other Allowances include payments like military service pay, dearness allowance, kit maintenance allowance, transport allowance.

The other allowances provided are largely dependent on nature of posting and place of work. These also additionally include field area allowance, Hill area allowance, special force allowance and Remote Locality Allowance.

Other Benefits

Excluding the grade pay & other allowances, the officers are also entitled to certain benefits such as furnished accommodation, Medical Cover for personnel and family, journey concession, a 60 day/year leave, mess facilities, ration at decreased rate and many more including a Rs. 50 lakh insurance cover. These benefits and all the other reasons mentioned above are reasons enough for one to pursue such a job.

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In this article, Twinkle Jaiswal discusses License, registration and other legal requirements for starting a homestay.

Introduction

In India Guests are considered as ‘God’. Indians go out of their way to please them. There is a saying in India,’Atithi Devo Bhava’. Indian hospitality is great. Sadly, most visitors who come to India and stays in hotels never get an opportunity to experience true Indian Hospitality, as hotels are unable to provide them such hospitality. The result is that there is growing popularity of homestays in India.

With the aim of providing facilities of standardised world class services and a comfortable stay to the tourist, and to supplement the availability of accommodation in Metros and tourist destination, Ministry of Tourism classified fully operational terms of Bed and Breakfast/ Homestay facilities as “Incredible India Bed and Breakfast/Homestay Establishments”. The idea behind this concept is to provide a clean and affordable place for foreigners and domestic tourists including an opportunity for foreign tourist to stay with an Indian family to experience Indian customs and traditions and to relish authentic Indian cuisine.

Basis of classification under the Incredible India Scheme of BnB

The Incredible India Bed and Breakfast/Homestay will be categorised as follows;

Gold
Silver

Homestays are divided into various categories, which differ from state to state. For instance, while the government of Kerala classifies homestays as Silver, Gold and Diamond, the government of Rajasthan only categorises them as Silver and Gold. The higher the category, the higher are the yearly fees varying from state to state, a homestay has to pay to the government.

The Regional Classification Committee will inspect and access the Bed and Breakfast Establishment based on facilities and services provided by them.The details of the standards, facilities, services and the documents required for approval of such establishments will be as per these guidelines.
The Incredible India Bed & Breakfast/ Homestay Establishments, once approved by Ministry of Tourism, will be duly publicised. A directory of all such approved establishments will also be prepared, so as to enable domestic as well as foreign tourists to live in a homely environment and to take advantage of the scheme. In addition, efforts will be made to organise short-term training in hospitality trade to those who would opt for such training.
For obtaining license, the owner/promoter of the establishment along with his/her family must be physically residing in the same establishment and letting out minimum one room and maximum 6 rooms.
The Incredible India Bed and Breakfast/Homestay Establishment is expected to maintain required standard.

Registration and licensing of Homestay.

The application must be sent along with requisite fee to;

Regional Director (North), India Tourism, 88 Janpath, New Delhi – 110001.Tel: 011-23320005/8 (for States of Jammu & Kashmir, Himachal Pradesh, Punjab, Haryana, Uttranchal, NCT of Delhi, UT of Chandigarh and Uttar Pradesh except Agra and Varanasi).
Regional Director (West), India Tourism, 123 M. Karve Road, Mumbai -400020.Tel: 022-22033144 (for States of Gujarat, Chattisgarh, UT of Daman & Diu, Dadra Nagar Haveli and Maharashtra except Aurangabad).
Regional Director (South), India Tourism, 154 Anna Sallai, Chennai – 600002. Tel: 044- 28460193 (for States of Tamil Nadu and UT of Lakshwadweep).
Regional Director (East), India Tourism, “Embassy”, 4 Shakespeare Sarani, Kolkata -700071. Tel: 033 -22825813 (for States of West Bengal and Jharkhand).
Regional Director (North- East), India Tourism, Amravati Path, Christian Basti, G.S. Road, Guwahati -781007. Tel: 0361- 2341603 (for States of Assam, Tripura, Mizoram, Nagaland, and Sikkim). 6. Director, India Tourism, KFC Building, 48 Church Street, Bangalore – 560001, Karnataka. Tel: 080-25585417 (for the State of Karnataka).
Director, India Tourism, State Hotel, Khasa Kothi, Jaipur- 302001. Tel: 0141- 2372200 (for the State of Rajasthan)
Director, India Tourism, Sudama Palace, Kankar Bagh Road, Patna- 800020, Bihar. Tel: 0612-2345776 (for the State of Bihar).
Manager, Indiatourism, 191, The Mall, Agra- 282001, Uttar Pradesh. Tel: 0562-2226378 (for the city of Agra).
Manager, India Tourism, 15-B, The Mall, Varanasi–221001, Uttar Pradesh. Tel: 0542-2501784 (for the city of Varanasi). -6-
Manager, India Tourism, B/21B.J.B. Nagar, Bhubaneshwar -751014, Orissa. Tel: 0674-2432203 (for the State of Orissa).
Manager, India Tourism, Near Western Group of Temples, Khajuraho -471606, Madhya Pradesh. Tel: 07686-242347 (for the State of Madhya Pradesh)
Manager, India Tourism, VIP Road, 189, IInd Floor, Port Blair- 744103, Andaman & Nicobar Islands. Tel: 03192-236348 (for the UT of Andaman & Nicobar Islands).
Manager, India Tourism, 3-60-140, IInd floor, Netaji Bhawan, Liberty Road, Himayat Nagar, Hyderabad -500029, Andhra Pradesh. Tel: 040-23261360 (for the State of Andhra Pradesh).
Manager, India Tourism, Willingdon Island, Kochi -682009, Kerala. Tel: 0484-2668352 (for the State of Kerala).
Manager, India Tourism, Communidade Building, Church Square, Panaji -403001, Goa. Tel: 0832-2223412 (for the State of Goa).
Manager, India Tourism, ‘Krishna Vilas’, Station Road, Aurangabad – 431005, Maharashtra. Tel: 0240-2364999 (for the city of Aurangabad).
Manager, India Tourism, U Tirot Singh Syiem Road, Police Bazaar, Shillong -793001, Meghalaya. Tel: 0364-225632 (for the State of Meghalaya).
Manager, India Tourism, Sector ‘C’, Barapani Police Point, Naharlagun -791110, Arunachal Pradesh. Tel: 0360-2244328 (for the State of Arunachal Pradesh)
Manager, India Tourism, Old Lambu Lane, Jail Road, Imphal – 795001, Manipur. Tel: 03852-221131 (for the State of Manipur).

The applications were initially handled by the State Government, application now are accepted and handled at the district level itself. This makes easier for the establishment in small towns and rural areas. After submission of application form the representatives of the district government come in for a surprise inspection, following which a homestay is recognised and rated as per facility available. As homestay is not treated as commercial establishment in most states, no commercial luxury or service taxes are levied. The process of acquiring an electricity connection is the same as that of a home, so the taves vary from state to state. Once initiated, the application and registration procedure takes a few months, but the whole process takes a couple of years to be completed.

Application format for an establishment of homestay.

1) Name of the(IIB&B) Incredible India Bed&Breakfast/ Homestay Establishment.

2) Category applied for

3) Name and address of the promoters/owners with a note on their background

4) Complete postal address of the IIB&B/ Homestay Establishment

a) Tel. no

b) Fax

c) E-mail

d) Mobile No. of the promoter

5) Distance of the IIB&B/Homestay Establishment in kms. from:

a) Airport

b) Railway Station

c) City Centre

d) Nearest main shopping centre

e) Nearest bus stand /scheduled city bus stop

6) Details of the IIB&B/Homestay Establishment:

(a)Area (in sq. metres) with title – owned/ leased (copies of sale/ lease deed to be enclosed)

(b) Revenue papers regarding ownership. Affidavit in case of co-sharer of house/land.

(c) Whether clearance obtained from the Police Authorities regarding the antecedents of the owner /owners and the proposed activity (copy to be enclosed)

(d)Number of rooms and area for each type of room in sq.ft. (single/double/suites)

e)Number of attached baths

(f)Details of public areas for the following facilities in sq. ft.

(i)Lobby/lounge

(ii)Dining space

(iii)Parking facilities

(g)Additional facilities available if any (not mandatory)

(i) Eco –friendly facilities

(ii)Facilities for differently abled persons

(h)Details of Fire Fighting equipment/ hydrants etc. if any

Photographs of the building including interiors showing types of facilities available, bathroom, living room, bedroom, parking etc.

Details of payment of application fee
Check list details as per Annexure II

(enclose a copy of the checklist duly certified that the facilities are available in the establishment)

Consent of acceptance of the regulatory conditions (please enclose a copy of the prescribed undertaking as per Annexure III duly signed by the owner of the establishment)

Other Legal Requirements.

If an establishment applies for classification/re-classification, it will have to be ready at all times for inspection by the Regional Classification Committee. No requests for deferment of inspection will be entertained.Classification will be valid for two years from the date of issue of orders or in case of reclassification from the date of expiry of the last classification provided that the application has been received within the stipulated time i.e. 3 months before the expiry of the last classification.

The application fees payable for classification/reclassification of IIB&B/Homestay will be as follows for the Govt. of India. The demand draft will have to be payable to

” Pay & Accounts Officer, Ministry of Tourism, New Delhi “.

Star Category For Classification/Reclassification

Silver Rs. 3,000
Gold Rs. 5,000

The rate of taxes for property, electricity and water to be paid for classified IIB&B/Homestay Establishments will be those prescribed by the appropriate authorities.

Challenges.

The entire process takes a couple of years but security is one of the most challenging issue. It is necessary to install CCTV cameras at the reception and records of guests must be maintained , photocopies of Identity Proofs must be taken.After all, homestay is a private property. All paperwork and procedure must be performed carefully in order to avoid any problem in the future.

Conclusion

As homestay is different from just renting a room because it entails owners to share their beliefs, experience and lives with the guests. The owner must provide the guest a memorable visit, so that they can share it with others. It is necessary to invest smartly in the homestay in order to provide all the facilities. The representative may come for surprise inspection, so it is necessary to maintain the standard. All the securities measures must be taken in order to avoid problems.

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In this article, Aishwarya Borgohain put forth International Conventions on Environment Protection Ratified by India.

Introduction – Paving the Road towards Environment Day

Plans to protect air and water, wilderness and wildlife are in fact plans to protect man. – Stewart Udall

Now an often-repeated and much valued principle of policy and governance, environmental protection was hardly seen as an underlying consideration where industrial development was concerned. The ramifications, detrimental as they proved to be to the quality of the environment itself, were nevertheless alarming enough to act as an impetus to swift global action, formulated through various treaties and conventions.

International Discourse – the North-South Debate

This formulation of a framework of laws having cross-territorial applicability can hardly be said to have come about without challenges. Notably, discussions were divided on a ‘North-South’ basis, with the developed countries as the former adopting the position that all countries should protect their environments and reduce greenhouse gas emissions. The developing countries, as the latter, took the stance that the measures could slow their development and that the North should be primarily held responsible as it is responsible for a majority of the world’s current GHG emissions.[1] The governing view that has since emerged is that of Common but Differentiated Responsibilities and Respective Capabilities (CBDR-RC), keeping in mind the role of each state and its corresponding liabilities.[2]

India’s participation in Multilateral Environment Agreements and Implementation thereof

UN Framework Convention on Climate Change (UNFCCC), 1992

Aim: Stabilize GHG emissions, adopt CBDR approach to sustainable development.
Year of ratification: 1993 (agreement signed by India in 1992)
Implementation in India: Working groups constituted by THE Ministry of Environment and Forests (MoEF), NATCOM (National Communication) prepared by the Government, with GHG inventory being duly communicated. Other measures include Establishment of the Technology Information, Forecasting and Assessment Council under the Department of Science and Technology, and formulation of the Participatory Forest Management Strategy of the Government of India

Montreal Protocol on Substances that Deplete the Ozone Layer (to the Vienna Convention for the Protection of the Ozone Layer), 1987

Aim: Reduction in the consumption and production of ozone-depleting substances (ODS), while recognizing differences in a nation’s responsibilities.
Year of Accession: 1992
Implementation in India: Commercial banks have been prohibited from financing investments with ODS technologies. Steering Committee on the Montreal Protocol has been formulated, as have Ozone Depleting Substances (Regulation and Control) Rules, 2000 (drafted by the MoEF)

India is a signatory to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), 1973

Aim: control international commercial trade in endangered species
Year of Accession: 1976 Implementation: Trade is jointly regulated through the Wildlife (Protection) Act, 1972, the Import/Export policy of Government of India, and the Customs Act 1962

Basel Convention on Trans-boundary Movement of Hazardous Wastes, 1989

Aim: Reduce trans-boundary movement and creation of hazardous wastes
Year of ratification: 1992
Implementation: The Indian Hazardous Wastes Management Rules Act 1989 provides a statutory framework to give force to this MEA.

Convention on Biological Diversity, 1992

Aim: Addressing biodiversity conservation and sustainable usage, habitat preservation, and protection of indigenous people’s rights, and intellectual property.
Implementation: Wildlife (Protection) Act, 1972 enacted.

Other conventions India is signatory to includes International Tropical Timber Agreement and The International Tropical Timber Organisation (ITTO), 1983, and UN Convention on Desertification, 1994.

Cartagena Protocol on Biosafety

Aim: protect biodiversity from potential risks posed by living modified organisms (LMOs), resulting from modern biotech.
Year of ratification: 2003
Implementation: Conference of the Parties to the Convention (COP) reviews the implementation of the protocol; India held the sixth meeting of the parties (MOP) in 2012.

Prior Informed Consent (PIC), Rotterdam Convention

Aim: Promote international cooperation in trade of hazardous chemicals, to protect human health and environmental safety.
Year of ratification: 2005
Implementation: statutory backing for the same has been laid down in Hazardous Wastes (Management and Handling) Rules, 1989.

Development of Environmental Jurisprudence in India

Public interest litigation

Judicial activism in the field of environment law has played a considerable role, with cases such as L.K.Koolwal v. State of Rajasthan[3] upholding the Constitutional right to a clean environment, and the MC Mehta cases bringing to the fore the need for expanding the scope of locus standi in this arena of law.

Polluter Pays and Precautionary principles

Expounding on the liability to be imposed, the Court interpreted in Vellore Citizens Welfare Forum vs Union Of India & Ors[4] that there is a two-pronged duty that operates – one to compensate the victim, and two, to restore the environment to its condition prior to degradation. It highlighted the polluter pays principle in Indian Council for Enviro-legal Actions v. Union of India[5] as being imperative to sustainable development.

Absolute Liability

As propounded most famously in Union Carbide Corporation v. Union of India[6], inherently dangerous activities- that go beyond the scope of strict liabilities- alone impose a complete obligation, not subject to any exemptions.

India’s Statutory and Administrative Framework

Enactments that give force to these MEAs include:

Environment Protection Act, 1985: It stands as an overarching act for environmental legislation in India. Various notifications have been issued within the ambit of this Act (notably Coastal Regulation Zone Notification, 1991, Revdanda Creek Notification, 1989, and the Taj Trapezium Notification, 1998.)
Corresponding Environment (Protection) Rules, 1986 have been laid down, and The National Environment Appellate Authority Act, 1997 has set up the Authority for overhearing appeals in environmental cases.
Water (Prevention and Control of Pollution) Act, 1974: regulates pollutant discharge, and provides for the setting up of non-compliance penalties; administration is done through the relevant State or Central Pollution Control Boards.
Air (Prevention and Control of Pollution) Act, 1981, which aims to control the levels of air pollution, through measures such as specification of National Ambient Air Quality Standards (NAAQS), and empowerment of Boards to ensure compliance. The Air (Prevention and Control of Pollution) Rules were formulated soon after in 1982, to lay down the powers of officers under the Act, and the procedures to be followed.
Atomic Energy Act, 1982 was enacted to deal with the issue of radioactive waste management, and the Hazardous Wastes (Management and Handling) Rules, 1989, provides a basis on which to manage and handle such wastes.
Motor Vehicles Act, 1988: Aimed to address vehicular traffic and transportation of hazardous wastes.
The Wildlife (Protection) Act, 1972, Amendment 1991, and The Forest (Conservation) Act, 1980, are two other statutes that have been adopted to provide measures for the protection of forests and fauna.

Forging The Way Ahead

India has been active in its participation on the international scenario, as seen from its activities on the ‘Global Tiger Forum’ (GTF), and the Like-Minded Mega-Diverse Countries (LMMDCs). The requirements themselves are ever-changing, and thus need the continuous of evolution of the law, which must duly keep pace. Consistent have been taken by the MoEF and various other Ministries to abide by, and give force to, the international commitments that the country has made.

Reference

More on climate and environment protection laws!

Legal Framework In India To Protect The Environment

Important Laws On The Protection Of Environment

How Do Environmental Laws Affect Us?

[1] Jesse Cameron-Glickenhaus, North-South Debate, ‘Green Issues and Debates: An A-to-Z Guide’, SAGE Knowledge; Accessed from http://dx.doi.org/10.4135/9781412975728.n83

[2] Articles 3 & 4, United Nations Framework Convention on Climate Change (UNFCCC) 1992

[3] AIR 1988 Raj 2, 1987

[4] WP 914/1991 (1996.04.26)

[5] 1996 AIR 1446

[6] 1992 AIR 248

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In this article, Ashok Kumar Samal of Hidayatullah National Law University discusses consequences of non-registration or non-compliance with GST in a business

Goods and Services Tax or better known as GST is a simplified indirect and uniform tax structure applicable throughout India to replace taxes levied separately by the central and state governments. First, it was introduced as The Constitution (One Hundred and First Amendment) Act 2016, which followed the passage of Constitution 122nd Amendment Bill. GST Council is the governing body of GST.

The introduction of Goods and Services Tax in India is a gigantic step in the indirect taxation reform. The simplicity of the tax has various advantages such as:-

Simpler enforcement and administration;
reduction in the aggregate tax burden on goods/services;
Unrestricted intrastate movement of goods;
reduction in paperwork to a large extent.

The Central Goods And Services Tax Act was passed in 2017 and is composed of 174 Sections which provide in detailed clauses regarding registration, tax payment structure, the consequence of non-compliance with the Act etc.

Section 122-138 of the Central Goods and Services Tax Act, 2017 provide various regulations regarding the liability of taxable/registered persons under the act for any reasons such as non-payment of tax or non-compliance with the provisions of the act.

When Penalty is unspecified under the Act

Section 125 defines the clause that what shall happen in cases an offence is not mentioned under the act. For committing offences or contravening provisions of this Act for which no penalty has been provided under this Act, a person shall be liable to a fine of upto Rs. 25,000. Act shall be liable to a penalty which may extend to twenty-five thousand rupees.

Liability of a Taxable Person

Sub-clause 1 of Section 122 of the Act talks about cases when a taxable person shall be liable and will have to pay a fine of Rs. 10,000 or an amount equivalent to the tax evaded, whichever is more. The following are these cases:-

When he supplies any goods and/or services without issue of any bill;
When he issues an incorrect or false invoice;
When there is issuance of any bill or bill without supply of goods and/or services;
When he fails to pay the collected tax to the government within 3 months.
When he fails to deduct the tax in accordance with the provisions of this act.
When he takes or utilises input tax credit without actual receipt of goods and/or services;
When he fraudulently obtains refund of tax under this Act;
When he takes or distributes input tax credit in contravention of this act;
When he falsifies or substitutes financial records or produces fake accounts or documents with a clear intent to evade payment of tax due under this Act.
When he fails to register;
When he provides fake particulars at the time of registration;
Obstructs or prevents any officer in discharge of his duties under this Act;
When he suppresses his turnover leading to evasion of tax under this Act;
Upon failure to keep, maintain or retain books of account;
Upon supply, transport or storage of any goods which he has reasons to believe are liable to confiscation under this Act;
Upon tampering or destruction of any important evidence or document.

Liability of a registered person on supplying untaxed products

While Sub-clause 1 of Section 122 talks about the liability of a taxable registered/unregistered person, Sub-clause 2 talks about when a taxable and registered person is specifically liable for supplying products/services on which tax has not been paid or short-paid,

For reasons other than the reason of fraud or any willful misstatement for the purpose of evasion of tax, shall pay the higher amount between a fine of Rs. 10,000 or 10% of the tax evaded.
For reasons equal to fraud or any willful misstatement for the purpose of evasion of tax, shall pay the higher amount between a fine of Rs. 10,000 or the total amount of tax evaded.

A separate fine of upto Rs. 25,000 is applicable on any taxable person who:-

Works towards the aiding or abetting of any of the offences specified above;
Is in possession of any goods which he knows are liable to confiscation under this Act;
Receives any supply of services which he knows are in contravention of any provisions of this Act;
Fails to appear before the officer of central tax, when summoned for appearance.

Furnishing of Information

Section 151 talks about furnishing of information. It says that when any person is called upon by the commissioner for furnishing information or returns under the act, he shall mandatorily do so in any manner prescribed and Section 124 talks about the penalty for non-compliance with Section 151. It says that if any person required to furnish any information or return under section 151, without any reason fails to furnish such information or does so wilfully, or produces false information shall be liable to a fine upto Rs. 10,000.

Minor Contravention of the Act

Section 126 of the Act says that no penalty or fine shall be imposed for minor violation of procedural requirements or tax omissions. Then it goes on to define minor breaches and says that a breach will be considered minor in nature if the amount of tax involved is Rs. 10,000 or if the mistake in document is visible on the face of it. The fine imposed under this Act shall depend on the facts and circumstances and severity of breach of each case. It also says that everyone will be given a chance to justify their actions before imposing a penalty.

Waiver of Penalty

Section 128 specifies cases in which penalty may be waived. It says that the Government may, by notification, waive in part/full, any penalty mentioned in section 122 or section 123 or section 125 on the recommendations of the GST Council.

Transportation or Storage in Contravention

Section 129 says that in case of storage or transportation of any products in contravention of this act are liable to detention or seizure. They shall only be released on payment of the applicable tax and penalty equal to one hundred per cent. of the tax payable on such goods and, in case of exempted goods, on payment equal to 2% of the value of goods or twenty-five thousand rupees, whichever is less, where the owner of the goods comes forward for payment of such tax and penalty. Where the person transporting the goods fails to pay the amount of tax and penalty within seven days of such detention or seizure, further proceedings shall be initiated in seven days. When the seized products are perishable or hazardous in nature or their value is likely to deteriorate with time, the period of 7 days might be considerably reduced.

Contravention with an intent to Avoid Tax

Section 132. (1) Whoever commits any of the following offences with an inherent intent to evade tax shall be punishable with imprisonment for a term which may extend to six months or with fine or with both:-

Supplies any goods or services or both without issue of any bill, with the intention to evade tax;
Issues any bill without supply of goods in violation of the Act, which may also lead to wrongful utilisation of input tax credit;
Avails input tax credit using fake bill;
Collects any amount as tax but fails to pay the same to the Government beyond a period of three months from the due date;
Evades tax, fraudulently avails input tax credit or fraudulently obtains refund;
Falsified his financial records and documents or produces fake accounts;
Obstructs an officer employed under this act while discharging his duties;
Tampers or destroys any material evidence;
Fails to supply any information which he is required to supply under this Act;

If any person convicted of an offence under this section is convicted repeatedly of an offence under this clause he shall be punishable for the second conviction including every subsequent offence with imprisonment of term upto five years

It also specifies that all the punishments under this clause shall be non-cognizable and bailable.

Jurisdiction of Courts

Section 134 mentions that no court shall take cognizance of any offence punishable under this Act or the rules made thereunder unless it has been previously sanctioned by the Commissioner, and the lowest court that can try any offence under this act shall be the court of a Magistrate of the First Class.

Existence of Mens Rea shall be presumed

Section 135 says that any offence which has the mandatory requirement of a culpable mental state on the part of the accused, it shall be presumed by the court that such a mental state exists. The burden rests upon the accused to prove that he had no such mental state during the commission of such offence.

Who shall be liable in cases of a Company

Section 137 provides the answer to this particular question. It says that where an offence was committed by a person who is a company, every individual who was in responsibility for the conduct of the company at the time of the offence, shall be held to be guilty of the offence and can be convicted and punished accordingly.

Where an offence has been committed by a taxable person being a partnership firm or a Limited Liability Partnership or a Hindu Undivided Family or a trust, the partner or karta or managing trustee shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

If a person had no knowledge of the offence committed or exercised due diligence to prevent the commission of such offence he shall not be held liable.

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In this article, Syeda Muneera Ali of KIIT School of Law discusses Top 3 SEBI Orders under the Takeover Code in the year 2017.

What do you mean by a takeover?

The term ‘Takeover’ has not been specifically defined under the Securities and Exchange Board of India (Substantial Acquisitions of shares and Takeovers) Regulations, 1997, or in any of its subsequent amendments (primarily, 2002, 2011 and 2017). However, it may be understood generally that it includes an acquirer, who aims to take over the control or management of the company in a direct, or an indirect manner, whereby, if a substantial number of shares or voting rights of the target company are acquired, it results in the ‘Substantial Acquisition of Shares’.

The SEBI (substantial acquisition of shares and takeovers) regulations, 1997 specifically define the terms substantial quantity of shares and voting rights separately:

For any disclosures to be made by acquirer(s)

A person who, along with PAC (Persons acting in Consent), if any (referred to as ‘Acquirer’ hereinafter) acquires shares or voting rights is required to disclose the details of his shareholding to the target company within four days of acquisition, or within four days of receiving the information about share allotment, if the acquired share or voting right and any existing holding together entitles him to more than 5 per cent shares or voting rights of target company.

An acquirer is bound to disclose his aggregate shareholding to the target company, if he holds more than 15 per cent shares or voting rights of target company, within 21 days from the financial year ending March 31 and record date fixed for dividend declaration. Similarly, it is the duty of the target company to inform all stock exchanges with its share listings, within 30 days from the financial year ending March 31 and the record date fixed for dividend declaration.

For the purpose of making an open offer by acquirer

If an acquirer intends to acquire a certain amount of shares, which, together with his existing shareholding entitles him to more than 15 per cent voting rights, then s/he is required to make a public announcement (PA) to acquire at least additional 20 percent of the voting capital of target company from the shareholders through an open offer before he can proceed with the acquisition.

Creeping limit of 5 per cent

An acquirer whose shares/voting rights of a target company is between 15 per cent and 75 per cent, is able to consolidate his holding up to 5 percent of the voting rights in any period of 12 months. However, if the acquirer intends to make any additional acquisition over and above 5 percent, it is required to make a public announcement to acquire at least 20 percent shares of the target company from the corresponding shareholders through an open offer.

Consolidation of holding

In the case an acquirer has 75 per cent shares/voting rights of target company, it is required that a public announcement is made, specifying the number of shares to be acquired through an open offer from the shareholders of the target company before any further acquisition can be made.

What is the origin of the SEBI Takeover Code?

The inception of SEBI was in the year 1992. SEBI’s existence was primarily to establish a regulatory body, that aimed to promote, develop and better the securities market, and strive to protect the interests of the investors in the said securities market. Hence, SEBI appointed a committee that was headed by P.N.Bhagwati, in order to study the effects of takeovers and mergers:

‘The confidence of retail investors in the capital market is a crucial factor for its development. Therefore, their interest needs to be protected, an exit opportunity shall be given to the investors if they do not want to continue with the new management., full and truthful disclosure shall be made of all material information relating to the open offer so as to take an informed decision, the acquirer shall ensure the sufficiency of financial resources for the payment of acquisition price to the investors., the process of acquisition and mergers shall be completed in a time-bound manner. disclosures shall be made of all material transactions at the earliest opportunity.’

In today’s competitive corporate world, the takeover of companies is a common and well-known business strategy. Therefore, in order to ensure a substantial amount of fairness, and the protection of the interests of small business, SEBI framed the regulations that provided for the Acquisition of Shares and Takeover of Listed Companies. This came to be referred as the ‘Takeover Code’. The SEBI Takeover Regulations, are applicable to the acquisition of the voting rights or control over the listed companies.

What are the highlights of the SEBI Takeover Code Amendment, 2011

Though there have been several modifications as per the 2011 amendment, some of the primary and significant highlights are:

Increase in the initial threshold limit from 15% to 25%.
Increase in the creeping acquisition limit from 15%-55% to 25%-75%.
Provisions of a voluntary open offer.
Recommendation on open offer by the board of the target company.
Increase in offer size from 20%-26%
Provisions related to indirect acquisition introduced.
New definitions introduced such as Enterprise value, Volume weighted average market price, the volume weighted average price, weighted average number of total shares, etc..
Abolition of non-compete fees.
Revision of fees.
Takeover code, 1997 included a company with any of its directors, or any person entrusted with the ‘management of the funds if the company’. the 2011 amendment widens the scope of such persons as may be entrusted with the management of the company.

Exemptions by the Board

(1) The Board may for reasons recorded in writing, grant exemption from the obligation to make an open offer for acquiring shares under these regulations subject to such conditions as the Board deems fit to impose in the interests of investors in securities and the securities market.

(2) The Board may for reasons recorded in writing, grant a relaxation from strict compliance with any procedural requirement under Chapter III and Chapter IV subject to such conditions as the Board deems fit to impose in the interests of investors in securities and the securities market on being satisfied that,—

(a) the target company is a company in respect of which the Central Government or State Government or any other regulatory authority has superseded the board of directors of the target company and has appointed new directors under any law for the time being in force, if,—

(i) such board of directors has formulated a plan which provides for transparent, open, and competitive process for acquisition of shares or voting rights in, or control over the target company to secure the smooth and continued operation of the target company in the interests of all stakeholders of the target company and such plan does not further the interests of any particular acquirer;

(ii) the conditions and requirements of the competitive process are reasonable and fair;

(iii) the process adopted by the board of directors of the target company provides for details including the time when the open offer for acquiring shares would be made, completed and the manner in which the change in control would be effected; and

(b) the provisions of Chapter III and Chapter IV are likely to act as impediment to implementation of the plan of the target company and exemption from strict compliance with one or more of such provisions is in public interest, the interests of investors in securities and the securities market.

(3) For seeking exemption under sub-regulation (1), the acquirer shall, and for seeking relaxation under sub-regulation (2) the target company shall file an application with the Board, supported by a duly sworn affidavit, giving details of the proposed acquisition and the grounds on which the exemption has been sought.

(4) The acquirer or the target company, as the case may be, shall along with the application referred to under sub-regulation (3) pay a non-refundable fee of rupees fifty thousand, by way of a banker’s cheque or demand draft payable at Mumbai in favour of the Board.

(5) The Board may after affording reasonable opportunity of being heard to the applicant and after considering all the relevant facts and circumstances, pass a reasoned order either granting or rejecting the exemption or relaxation sought as expeditiously as possible: Provided that the Board may constitute a panel of experts to which an application for an exemption under sub-regulation (1) may, if considered necessary, be referred to make recommendations on the application to the Board.

(6) The order passed under sub-regulation (5) shall be hosted by the Board on its official website.

What are the top 3 orders by the SEBI board under the takeover code in 2017

SEBI is an institution that protects the interests of investors. Therefore, it has been reposed with various powers and functions. One of its various powers is that of the power to pass rulings, orders, etc., in the time of a dispute, whereby it determines the substantive rights and liabilities of the parties. The rulings, orders, etc., given by the SEBI may be challenged at the appellate forum, i.e., the Securities Appellate Tribunal (SAT).

The three most significant orders passed by SEBI, in terms of the takeover code in the year 2017, are:

In respect of Mr Anil T Jain, in the matter of Acquisition of shares of Refex Industries Limited, formerly known as Refex Refrigerants Limited. (WTM/GM/EFD/DRA III/10/FEB/2017)

Area of Dispute: Under section 11B of the Securities and Exchange Board of India Act, 1992 and Regulation 44 of the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 1997 read with regulations 32 and 35 of the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011.

Background: Refex Industries Limited (hereafter referred as Target Company/Refex) is a company registered under the Companies Act, 1956, with its office in Chennai, and its securities are listed on the Bombay Stock Exchange (BSE). An investigation by the SEBI showed that Mr Anil T. Jain (thereafter referred as ‘noticee’), a promoter and director of Refex, together with the promoter group, was holding 55% shares during the quarter ending on June 30, 2008, and September 30, 2008. On September 4, 2008, the noticee acquired 42 shares through an off-market transaction from Mr Anand Kalu Marathe. The dispute arises as the noticee had not made a public announcement of an open offer before acquiring the shares.

Therefore, on February 26th, 2016, SEBI issued a show cause notice to the noticee, however, received no response.

Order: The SEBI board, upon an assessment of the facts and arguments that were presented by the council for the noticee, concluded in the following manner:

(a) that there has been a violation of Section 11(2) on the part of the noticee, however, such violation was not intentional or for acquisition and was merely technicality.

(b) that there had been clear mitigating circumstances, due to the subsequent amendments to the takeover regulations, which further lessen the gravity of the situation.

The SEBI board disposed of the show cause notice, due to the fact that this was not a fit case.

Basically, to simplify, this situation it can be said that due to the subsequent amendment of 2011, the provisions that were valid as per 1997, have been overwritten and therefore, to some extent, nullified. Legally speaking, this principle may be referred to as ‘ex-post facto’ law whereby, a person cannot be held liable for something that was not an offence when committed.

In the matter of Proposed Acquisition of Shares and Voting Rights of Deep Industries Limited by Shantilal Savla Family Trust. (SEBI/WTM/SR/CFD-DCR/23 /03/2017)

Area of dispute: Under Regulation 11(5) of the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 2011.

Background: The Shantilal Salva family trust (thereafter referred as acquirer, is a private family trust) sent an application to the SEBI in September, 2016, seeking an exemption from making an open offer in request to the proposed acquisition and the control of the shareholding and voting rights of Deep Industries Limited (hereafter referred as the target company). The target company is listed under the Companies Act, 1956 as of January 1991, with its office in Ahmedabad, Gujarat. The securities of the target company are listed on BSE and NSE. The ultimate beneficiary of the acquirers are the promoters and members of the promoter group of the target company.

Now, legally speaking, as per the regulation of the Takeover Code, 2011, any individual or persons acting in consent with the individual, is mandated to make a public announcement of an offer for acquiring the shares of such company (as per Regulation 3(2) of the SEBI Takeover Regulations).

However, the acquirer made the following points:

“The proposed acquisition is further to an internal reorganisation within the promoter family and beneficiary trusts is intended to streamline succession and promote the welfare of promoter family. The proposed acquisition would be a non-commercial transaction which would not affect or prejudice the interests of the public shareholders of the Target Company in any manner. The proposed acquisition would not result in a change in control and management of the Target Company. In any event, since the Acquirer has been set up for the benefit of the members of promoter family, the trustees of the Acquirer will exercise control only as part of promoter family. Therefore, regardless of whether the trustees exercise control in their personal capacity or as trustees, the promoter family would continue to be in control of the Target Company.”

Order: Keeping in mind all the situations and propositions made by the acquirer, the Order passed in exercise of powers conferred under Section 19 of the Securities and Exchange Board of India Act, 1992 read with Regulation 11(5) of the Takeovers Regulations, thereby granted exemption to the proposed Acquirer i.e. Shantilal Savla Family Trust from complying with the requirements of Regulation 3 of the Takeover Regulations in respect to its proposed acquisition/exercise of voting rights of the Target Company viz., Deep Industries Limited. There were 9 conditions that were to be fulfilled, in order for it to be applicable for exemption. All of these orders were pertaining to the smooth functioning of the company, and the scrutiny of the acquirer, in order to ensure efficiency and the legality of the situation.

The exemption granted, was limited to the requirements of making open offer under the Takeover Regulations and shall not be considered as an exemption from the disclosure requirements under Chapter V of the Takeover Regulations, the compliance with the SEBI (Prohibition of Insider Trading) Regulations, 2015, the Listing Agreement/SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 or any other applicable Acts, Rules and Regulations.

To simplify the above situation, it can be said that though public declarations are mandatory in matters of acquisitions, there are some exceptional circumstances, whereby this mandate becomes an exception. In the given situation, this circumstance is the rearrangement of shares, instead of any form of change in the management or control of the company.

In the matter of proposed acquisition of shares and voting rights in Pudumjee Industries Limited (SEBI/WTM/SR/CFD–DCR/15/03/2017).

Area of Dispute: Under regulation 11(5) of the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011.

Background: Pudumjee Industries Limited (“Target Company”) was incorporated under the Companies Act, 1956 (“Companies Act”) on December 31, 1965. The Registered Office of the Target Company is in Pune, and the shares of the Target Company are listed on BSE and the NSE. SEBI received an application from Yashvardhan Jatia Trust (proposed acquirer), seeking an exemption in respect of the proposed acquisition and control of the shareholding and voting rights in the Target Company.

The reasoning behind such an exemption request, was stated as follows: “Shri Arum Kumar Jatia who is the father and natural guardian of the minor child is a single parent and the entire shareholding bequeathed to the minor child as well as those shares which are held by the minor child in his own name, is being managed by him, as the minor child’s guardian. Shri Arun Kumar Jatia is also the sole signatory of the Demat Account of Master Yashvardhan Jatia and in his absence, there is no other signatory to the said Account. It is felt that transfer of the said the said shares to the Trust would facilitate the better management of the shares entitled to and held by the minor child since there would be more than one signatory to operate the Demat Account. The proposed transfer of shares to the Trust, thus, emanate from the father’s concern and effort to spread the responsibility of securing the minor son’s future and financial interests among a group of trusted, close and immediate relatives. The shares bequeathed to Master Yashvardhan Jatia are currently being held by Executors of the respective wills.”

The proposed acquisition is only an arrangement wherein the shares of the minor beneficiary will be held by the Trust and therefore, it will not be prejudicial to the interests of the public shareholders of the Target Company.

Order: In exercise of the powers conferred under Section 19 of the Securities and Exchange Board of India Act, 1992, read with Regulation 11(5) of the Takeover Regulations, thereby granted an exemption to the Proposed Acquirer, viz. Yashvardhan Jatia Trust from complying with the requirements of Regulation 3(2) of the Takeover Regulations with respect to its proposed acquisition/exercise of voting rights in respect of the Target Company, viz. Pudumjee Industries Limited, by way of proposed transactions as mentioned in the Application. There were nine conditions that were to be followed, for the granting of the said application. Each of these conditions was stated, in order to ensure that there were compliance and efficiency, instead of a blatant disregard for the order passed.

The exemption granted above is limited to the requirements of making open offer under the Takeover Regulations and shall not be construed as exemption from the disclosure requirements under Chapter V of the Takeover Regulations; compliance with the SEBI (Prohibition of Insider Trading) Regulations, 2015; Listing Agreement/SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 or any other applicable Acts, Rules and Regulations.

To simplify this situation, there was a grant of the exemption order, as this situation dealt with the assurance that the minor had his future and financial situation secured. However, in order to assure that such exemptions are not misused, there were conditions attached to the order, that would ensure the compliance of the said order in an efficient manner.

Conclusion

SEBI aims to ensure that there are fair and just practices of takeovers, which do not violate the rights and liabilities of the people. The SEBI ‘Takeover Code’, strives to ensure the same, in order for people to have faith and believe in the system of legality and respect the procedures of law. However, it is also in the understanding of SEBI that there are circumstances, where it is necessary to deviate from a norm. Such situations, however, need to be genuine and not fraudulent in nature. The SEBI Takeover Code is a well drafted and competent Regulation, that must be followed and respected, in order to ensure the applicability of its regulations.

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In this article, Yash Kansal discusses the applicability of law of torts and general defences under law of torts.

Origin of Torts

The law of torts administered in India is a part of the common law which was firstly introduced in 18^th century after establishment of Mayor’s Court in three presidency town of Calcutta, Madras, Bombay. These courts administered justice according to common law and statue of England. Being a part of common law the decisions under torts was based on previous judgments on various cases or according to ‘justice, equity, & good conscience’ i.e. based on rules of English law found applicable in Indian Society & circumstances.

Current applicability of Torts in India

The question arises whether the law of torts is applicable in India after independence or not?

“It has also been held that Section 9 of the Code Of Civil Procedure, which enables a civil court to try all suits of a civil nature, impliedly confers jurisdiction to apply the law torts as principles of justice, equity & good conscience.”[1]

General Defences Available To Defendant

According to Salmond – “ Tort is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of contract or the breach of a trust other merely equitable obligation.”

As the definition states it is a civil wrong which results in legal damage (Injuria sine damno) or violation of legal right vested in the plaintiff with or without damage. The plaintiff files a civil suit against the defendant for reward of pecuniary damages in the form of compensation which is unliquidated in nature (not predetermined). Violation of legal right means where the person is legally bound does not perform his/her obligation for example a nurse hired for taking care of child is liable for non-performance of his duty whereas injury suffered by child due to negligence of his parents having moral duty towards their child does not amount’s to liability under torts. A civil suit can be filed for the cases related to nuisance, negligence, assault, trespass, defamation, etc.

However following general defences are available to the defendant in his defence against tortious claims

Volenti Non Fit Injuira: It is the situation where the plaintiff himself agreed or consented to suffer harm. For example a person invites someone to attend party in his home cannot sue him for trespass. Similarly where the plaintiff himself took a lift from a jeep driver and later on suffered injuries or losses due to accident will not be entitle for any compensation (Padmavati v. Dugganaika) [2].
Inevitable accident: It means an injury due to an accident which could not be avoided by taking reasonable care on the part of the defendant. In the case of Stanley v. Powell [3] the defendant fires bullet from his gun to shoot a bird which diverts after striking an oak tree and injures the plaintiff. It was held that the injury was accidental and defendant was not liable.
Plaintiff the wrongdoer: It is the situation where the plaintiff is himself under a fault and cannot claim compensation. In Ponting v. Noakes [4], the plaintiff horse entered into defendant’s land and died after eating poisonous leaves of a tree.
Act of god: Here the injury suffered by plaintiff is due to natural force which is beyond the control of human being. The occurrence of event must be extraordinary in nature. For example in the case of Nichols v. Marshland [5] Four bridges of the plaintiff was washed away due to escape of water from the defendant’s reservoir by happening of extraordinary rainfall. However if the rainfall happened to be not an extraordinary nature then the defence under act of god is not available to the defendant (Kallulal v. Hemchand)[6].
Private defence: The law permits the use of reasonable force for the protection of personal life and property. But if the force applied is unreasonable then the defence is not available to the defendant. In the case of Ramanuja Mudali v. M. Gangan [7], the defendant a land owner for the protection of his property laid some electric wire which causes shock to the plaintiff crossing at night. The defendant had given no visible warning about such wire and he was held liable for the injuries caused to the plaintiff.
Necessity: If any act is done to prevent a greater evil or harm then it was not actionable even the damage is caused intentionally. In Cope v. Sharpe [8], the defendant entered into plaintiff’s land to prevent the spread of fire which was considered necessary to save from imminent danger and hence the defendant cannot be held liable.
Statutory Authority: Any damage caused by the act under a statue is not actionable. For example diversion of stream or river or construction of roads, dams, bridges by state (govt.) causing damage to plaintiff’s land or causing nuisance in surrounding does not amount‘s to any offence . In Hammer Smith Rail Co. v. Brand [9], the value of plaintiff property was depreciated due to noise, smoke & vibration caused by running of trains constructed under statutory authority. Hence it is not actionable.

References

[1] Union Carbide Corporation v. Union Of India , 1988 MPLJ 540 (ref. with Ratan & Dhirajlal ‘The Law of torts’ pg. 2)

[2] (1975) 1Kam. L.J. 93 1975, A.C.J. 222

[3] (1891) 11 Q.B. 86

[4] (1849) 2 Q.B. 281

[5] (1876) 2 Ex D. 1

[6] A.I.R. 1958 M.P. 48

[7] A.I.R 1984 M.P. 103

[8] (1981) 1 K.B. 496

[9] (1869) L.R.H.L. 171

{ [2-9] with ref to Law of Torts by R.K. Bangia}

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In this article, Sachin Vats of Rajiv Gandhi National University of Law discusses ten important factors to take care if before finalising the seat of arbitration.

INTRODUCTION

Arbitration is a hybrid form of dispute resolution as it blends elements of civil law and common law procedure while providing the parties with an opportunity to design the procedural rules under which their disputes will be resolved.
The Seat of Arbitration is the jurisdiction where the parties intend the law of arbitration to apply in their arbitrational agreement which is called as “lex arbitri” i.e., the applicable procedural law of arbitration.
Arbitration is a leading form of dispute resolution between different business units as well as foreign investors and States. It is a consensual, neutral, binding, private and enforceable means of dispute resolution which is typically faster and less expensive than domestic court proceedings.
There are a few misconceptions with respect to the Seat of Arbitration. The Seat of Arbitration need not be the same as the governing law of contract or be based in the same place as the chosen arbitral institution. A Seat of Arbitration typically provides the framework underlying the Arbitration. It gives courts of the seats supervisory jurisdiction over the proceedings.

The Top Three Factors that make arbitration most desired Dispute Resolution are:-

Speed.
Flexibility.
Confidentiality.

The Arbitration Law in India:-

The Indian Arbitration and Conciliation Act, 1996 is based on the 1985 UNCITRAL Model Law on International Commercial Arbitration and the UNCITRAL Arbitration Rules 1976. The Act is a composite piece of legislation. It provides for Domestic Arbitration, International Commercial Arbitration, enforcement of foreign award and conciliation.

Ten Things to take care of before finalising the SEAT of Arbitration

Courts Intervention and Procedures

The identification of the seat of arbitration is one of the most important features of an arbitration clause. It determines the law of Procedures which the arbitration adopts. The intervention of the of the courts exercising jurisdiction over the seat also depends on it. Domestic Courts play a “Supervisory Role” over arbitration in their jurisdiction.
The role of the judicial intervention during arbitration is provided under section 9 of the Arbitration and Conciliation Act,1966. It provides interim measures to protect parties, their assets, interests and maintain status quo.
This power is mandatory, not subject to the parties autonomy. These powers are not available where the seat of arbitration is outside India or it has not been designated or determined.

Safe-Option

Some seats of arbitration are safe options in terms of more “arbitration-friendly states”. The countries which are parties to the New York Convention allows the enforcement of arbitral award internationally. Another important point regarding safety is the “confidentiality”. When the arbitrations are seated in Hong Kong, London, Singapore then the parties are subject to a duty of confidentiality unless agreed otherwise. No such obligation is imposed on the parties in Paris and New York. Arbitration friendly States allow higher degree of procedural autonomy. It also offers supportive reliefs like interlocutory awards i.e., interim awards. “Paris” is considered as the safest place for arbitration but some prefer for New York due to non-legal factors.

3.Neutrality

It is one of the typically important factor. The ability to select a neutral state which is not the “Home” jurisdiction of either of the parties involved. It provides one of the key advantages over other affecting factors. But, it may lead to the reduction in the number of options available for the Seat of Arbitration. Thus, the essential part of an arbitration agreement is the parties’ consent to settle their disputes before one or more independent and impartial arbitrators of their choice, as opposed to bringing the dispute before a state court.

Place of Arbitration

The section 20 of the Arbitration and Conciliation Act deals with the Place of Arbitration. The parties are free to agree on the place of arbitration. If it is not decided by the agreement then the Arbitral Tribunal will decide the place of Arbitration according to the convenience of the parties and circumstances of the case. The Tribunal can decide the place of Arbitration as it deems fit if it is not decided by the Agreement or the consent of the parties.

Foreign Seated Arbitration

An Indian law is the part of the public policy of the country. Indian parties and Companies incorporated in India should not be permitted to derogate from the Indian Law. The Hon’ble Bombay High Court relying upon the judgment passed by the Hon’ble Supreme Court in the case of “TDM Infrastructure Private Limited v UE Development India Private Limited” has held that the intention of the legislature should be clear. The company cannot choose a foreign seat of legislation when the dispute is regarding the domestic issues derogating any of the Indian Laws but otherwise, they have the freedom to chose any seat of arbitration. Still, there is some controversy over this issue.

The Supreme Court on Seat of Arbitration

The Supreme Court of India in the case of “Eneron India Ltd. Vs. Eneron Gmbh” (2014) settled the law regarding “SEAT Vs. VENUE” in the International Arbitration Proceedings. The Supreme Court relied finally on the judgments of various the Foreign and Indian Courts. the parties had agreed that the provisions of “Indian Arbitration Act, 1996” would apply to the arbitration proceedings. In the present case, venue was specified as London, the Courts of UK and India passed contra orders assuming jurisdiction because of the scope for interpretation in the recitals of the arbitration agreement. Finally, it was held that London is mentioned only as a “venue” of arbitration which, in the facts of this case cannot be read as the “seat” of arbitration

Venue of Hearing Vs. Seat of Arbitration

The Seat of Arbitration may be independent of the Place or the Venue where the hearing or other parts of the Arbitral process takes place. The famous case of “Bharat Aluminum Co. Vs. Kaiser Aluminum Technical” (2012) commonly known as BALCO case differs between the two. The Seat of Arbitration is of vital importance as it has supervisory jurisdiction over the Arbitral process. The chosen Seat of Arbitration will remain unaffected of the geographical place where the hearings take place.

Choosing a Wrong Seat

The parties may have to suffer a lot if they choose a wrong seat of arbitration. The choice of wrong seat of arbitration leads to delay in decisions. It increases the chances of parallel court proceedings. It provides the scope of challenging the award on broad grounds in local courts. The court proceedings may not be reliable or in a jurisdiction where the counterparty is very well-connected. So, all these factors may cause loss to the party concerned.

Geographical Convenience

The geographical condition is an important consideration in terms of the convenience of the party. New York is a common seat of arbitration for the South American countries whereas London and Paris is preferred more in the Africa and the Middle-East. The countries like Hong Kong and Singapore are chosen in Asian context.

Logistical Factors

There are many non-legal factors also which affect the selection of the Seat of Arbitration. The availability of the desirable hearing venue, well-trained translators and specialized lawyers operating at the Seat is essential. Many parties also see for the cultural familiarity, quality of transport and accommodation. One practical issue worth considering is the convenience regarding language of the Seat of Arbitration. The issues related with stenographer, interpreters be satisfactorily dealt with. The absence of bribery and the safety of the parties are other considerations which persuade the parties to choose a particular Seat of Arbitration over a number of options.

CONCLUSION

Arbitration is seen as one of the most important means of dispute resolution and has become the default choice for adjudication of commercial disputes. The ever growing economic sector in the country and expectations of huge foreign investments, in addition to the “ease of doing business” proposition of the government, must be complemented with sound, contemporary and favourable dispute resolution laws to further encourage and lead to the realization of such ambitious goals. The parties before choosing the Seat for arbitration must see an established high quality and sophisticated legal system.

London is the most preferred destination even now in the field of seat of arbitration followed by Paris and Geneva. other places in the list are Singapore and New York.

The present scenario in India about Arbitration is that most of the cases of arbitration take more than three years for the completion and the most time consuming activity is the constitution of the Arbitral Tribunal.

SINGAPORE is becoming world leader in ARBITRATION:-

Singapore is challenging established centres for Arbitration such as London, Paris and Geneva. The number of clients from India is increasing and they are opting for Singapore as the Seat of Arbitration. Case filings at the Singapore International Arbitration Centre have increased by more than 300 per cent in the past 15 years. Singapore also provides for other options than Arbitration. If Arbitration is too aggressive for any company then Singapore also offers Mediation and Conciliation Services.

Finally, it would be recommended that the parties should explore all the available avenues and draft a strategic manner of Dispute Resolution which sufficiently covers all the foreseeable issues.

The post Ten factors to take care of before finalising the Seat of Arbitration appeared first on iPleaders.

LAWyersclubindia.com is looking for Content Intern for a duration of 2 Months/8 weeks.

job at a glance

Profile: Content Intern at LAWyersclubindia.com
Duration of internship: 2 Months/8 weeks

Work Description

Writing Articles on Law related Topics – Technical /Non-Technical for LAWyersclubinida.com
Researching and replying to unanswered queries in the Q&A section of LCI
Preparing content for social media as and when required
Connecting and nurturing the relation with industry experts and other writers
Inviting Guest Articles from the industry stalwarts
Taking interviews and preparing transcripts of those interviews
Calling for corporate communication
Collecting data and sending regular market feedback reports to the management
Any other content, writing or product sales related task can also be assigned

Products to look after

Required Qualification & Skills

Fresh Law graduates from a prestigious law school
Final year law students – 5 years law course
Graduates – studying three years law course
Company Secretary students – Professionals course
Excellent writing and communication skills
Highly fluent in English and Hindi
Passionate for writing and working in a startup culture
Highly Professional in conduct
Go getter and executors
Applicants must have their own laptop

Benefits & Compensation

Stipend: 5k per month in hand
2 days office and 3 days’ work from home
Goodies and merchandise on good performance
High learning environment
Certification of Internship with a recommendation letter (on good performance)
Other corporate exposure and industry connect opportunities
Free coffee when in office
Excellent candidates will be also be given an opportunity to work as full time employee

Company profile

Interactive Media: Providing interactive platform for Finance, Legal & Management through CAclubindia.com, LAWyersclubindia.com & MBAclubindia.com “Creating Knowledge Networks for millions of professionals”

Interactive Media is a fast growing online company which is connecting 2.2 million+ professionals from finance, legal & management fraternities. CAclubindia & LAWyersclubindia are the largest online platform in their respective fields with the name having becoming synonymous with professionals online. The company has recently also ventured into elearning space and has currently enrolled 30000+ students.

How to apply?

If you think you have the ability to think out of the box and not follow the usual, send us your CV at jobs@interactivemedia.co.in with the subject Lawyersclubindia Internship or apply below.
www.interactivemedia.co.in/jobs
Location:
Regus, Elegance Tower,
Jasola District Center
New Delhi | India | 110025
(Near apollo hospital )
Nearest metro station – Jasola Apollo on violet line

The post Internship Opportunity – Content Intern – LAWyersclubindia.com appeared first on iPleaders.

In this article, Anu Bhatnagar discusses the new Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules, 2017.

Introduction

Human’s ability to look after the animals have made an impression in the eyes of society that they can step forward towards civilization rather than just on hunting.

Humans devoted a good deal of energy to maximizing the worth of their new property. Management over breeding was significantly vital. Bound animals were mated with one another to provide offspring that were even additional valuable, whereas animals with undesirable properties were eliminated from the factor pool.

In result of this all animals were viewed as property, thereby all important decisions were started taking which had an economic and logistic basis. All other benefits like available meet and some other product under this activity were taken into consideration.

Meaning of ‘market’ under the new Regulations of livestock market Rules 2017

Market in an ordinary language can be understood as where supplier finds their potential customers with the aim of earning profit.

As a type of market, livestock markets are also those markets that provide a platform to the suppliers to sell their cattle to the buyers. Major areas in livestock sectors include dairy, fisheries and animal husbandry. This sector plays a prominent role in the development of socio and economic activities. Not only in particular sectors but also in the rural economy by an addition of useful employment and raising family incomes in the rural areas.

Despite being considered in small rural economy, Indian livestock industries have makeup for an important amount of livestock resources at the international platform.

Livestock in India: An Importance

Livestock in India goes on the far side to operate the food production.
Livestock Associate is providing important supply of manure for crop production and fuel for domestic use.
It’s a supply of minimizing use of non renewable energy.
Livestock, a very important supply of financial gain for the farmers and poor people in rural.

Benefits of livestock sector developments in India

It provides subsidiary occupation to individuals living in drought prone, hilly, social group remote areas wherever crop production isn’t comfortable.
It is proved to be boon for sustaining support of the landless and marginal farmers.
Husbandry sector provides massive self employment opportunities

Livestock Welfare Laws

In England and the US there were number of laws which were enacted in the 1800s. Its aim and objective of the said act was to protect animals from mistreatment, cruelty and abuse.

The first federal law called 24 hour law of 1873 was dealing with livestock protection and welfare. Its essential were that at least once every 24 hours of the travel, all the livestock which were being transported across the state lines must be rested and watered. The transportation medium at that duration was used to be done by rail around 2003.

Later on federal Animal Welfare Act was enacted in 1966 regarding the protection and welfare, but excluded livestock during the regulations enforceability.

Subsequently, another major legislation called Humane Methods of Slaughter Act of 1958 came into effect. The objective of this legislation was that there is a requirement of mandatory inspection at the slaughterhouse. Whatever techniques that associated or related with rituals or religion was excluded, in addition they excluded chickens as well.

All the enforcement regarding the said act for the protection as well as welfare of livestock was turned over to the U.S Department of Agriculture (USDA).

New Regulations regarding the livestock in India

Under the Prevention of Cruelty to Animals Act, a ban has been imposed on the sale and purchase of livestock from the market of animals by an inclusion and notifying of strict rules. By an incorporation of stringent rules, on 23rd may the government have notified the trade and transport of cattle to provide better protection and welfare of cattle. In addition to this, also stop smuggling activities.

There is a prohibition on the sale of cattle for the purpose of slaughter at the nationwide. Furthermore, they have included the Buffaloes in the definition enshrined under the rules that will likely affect the market of export (sale and purchase of meat) association.

The Ministry of Environment, Forest and Climate Change has brought these new norms which have been notified under Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules, 2017 on 23 May 2017.

Important points to remember under Regulation of Livestock Markets Rules

The new rules which have been notified by the central government on 23rd may ensures the welfare and protection of the cattle.
It contains 27 rules as per the notification and thereafter, the declaration in the official gazette they will come into force.
There are some important definitions which are given in discussed below

Camels. Bullocks, cows, bulls, buffaloes, steers, calves and heifers are covered under the definition of Cattle as per notification. [Rule 2(e)]
Animal market in an ordinary language can be understood as a place, sale-yard or any other platform at which the owner of the cattle bring animals from different places and keep them for sale. Moreover they arrange animas fairs and a pool of cattle for display, where visitors may come and purchase animals after completing the required conditions. [Rule 2(b)]
better regulations and welfare that will be named as Animal market committee [Rule 2 (c)]
Those activities which include hardships for an animal during the activity of trading shall be included under the prohibited practices. [Rule 2 (i)]

For the regulation and upkeep into the market there shall be a formation of an Animal Market Monitoring Committee, under the guidance of state Board. Subsequently, the member who will be part of the committee are named as below: [Rule 4]

Dist. Magistrate or District. Collector –Chairmen
Chief Veterinary Officer – Member Secretary
Jurisdictional Divisional Forest Officer
Jurisdictional Superintendent of Police
A representative of the SPCA (Society for Prevention of Cruelty to animals)

Another stringent provision in these rules that whosoever who has been penalized under the said Act shall not be allowed to become a member for the above stated committees.
For the smooth performance of trade cattle activity and for the recognition of those animals markets which had been incorporated before the commencement of these Rules, now have an open gateway for registration within the three months and get an approval by move an application to the Committee within the stipulated time. [Rule 5]
For the formation of new Animal market the Rules of the act provides and laid powers in the hand of local authority in compliance with the District Animal Market Monitoring Committee [Rule 6]

Perform due diligence when giving permission reading the establishment.
Specify the jurisdiction
Recognize the appropriate location or place for the animal market
For the establishment of an animal market, there is an requirement of blueprint beforehand.

The rejection or selection of the new Animal Market blueprint shall be based on the discretion of the Monitoring Committee. In addition all registration shall be made to the committee. [Rule 6 (2)(3)].
All the major functions and management shall be dealt by the District Animal Market Monitoring committee.
There are some extra remedies that must be taken into consideration such as about the place where new Animal market has originated. Rules state that new animal market should not be situated within the 25km from the state border and from international border it shouldn’t be within 50 km. [Rule 8]
The monitoring committees have given an ample power under the notified rules that they can by their own action may cancel or remove the any trade cattle market, if they found any malpractices during that time period. This whole process shall be subject to the Natural justice. [Rule 9]
After the establishment of new animal market there shall be proper inspection of premises as well as scrutiny of all accounts and records which will be done by the Recognized authorities under the Rules. [Rule 11,12]
For the benefit of the farmer, and also for agriculture purpose only healthy animals will be brought in the animal market. Because it was contended under the regulation of livestock market that the most of the time diseased as well as unfit animals are brought to the animal market, which are resulted in the threat of infectious disease among the healthier once.

Rule 14 of Regulations of livestock laid down various harmful and cruel activities or practices which are prohibited are as follows

There is prohibition of animal identification have legal and logical point. Say, for example processes like hot branding which is used during the activity may burn the skin or may cause everlasting hair damage.
Horn-shearing and painting (such as chemical substances like lead) may resulted in cancer, whereas putting ornaments or other object may result into discomfort and distress to animals.
All sorts of usage like color or chemicals must be prohibited.
No equipments like nose ropes and nose pegs should be used. In addition, no other sufferings or inevitable pain must be given because of exposure.
No animal must be kept away from food which may result into starvation.
Though it is contended that the marks like nose-cutting or ear-slitting are an easy way to found their lost animals, but rules have prohibited the same.

A duty shows the accountability for particular cause one example could be like an owner towards their cattle such activities will include: watering and feeding of animals. For the proper regulation of the stated duty the responsibility will be fall upon the monitoring committee to provide proper arrangements regarding feeding and watering of animals.
Major Duties shall be performed by the Member Committee termed as *Restrictions on sale of cattle to ensure that no young animal will be brought to the animal market.
All the necessary documents and other identification proofs must be provided to the Monitoring committee and assure them that no cattle shall be subject to slaughter.
Both seller and purchaser have to give an assurance (undertaking), which will state that ‘sold cattle are not subject for slaughter”.
Accommodation for fit and unfit animals shall be an additional duty of the member secretary. In addition if they found that unfit animals are in the market then they the Monitoring Committee shall render reasonable services for the same
There shall be construction of ramps and will be governed by the Animal Market committee.

Controversies Regarding the New Rules under the Regulations of livestock rules 2017 – At glance

Various opinions have been stated that particular new Rules an unsuitable or an appropriate law. It seems like the New Rules have banned the sale of cattle with the aim of imposing ban on slaughter activity. It has been contended that this move has deceptive intention and also includes camouflaging provisions with an intention to deceive the general people.

A Quick scan of the leading controversies

Rules intended to regulate and upkeep the market moreover to prevent cruelty and on the other hand imposing restrictions are not logically acceptable.
It is argued that the imposition of new Rules or a ban activity is opposing the parent act. for the stated contention it can be understood as, when the parent act comprehensively allows or permit an activity of slaughter of animals for their food (livelihood) then what is the point of implementing new Rules which states the ban on the trade of cattle for slaughter.
The definition of “animal market” given in Rule 2(b) is in question of conflicts because it is very difficult for traders to acquire animal from animal market.
Rule 22 (e)(iv) which has enumerated under Regulations of livestock rule 2017 which prohibits the owner of the cattle to sell outside the state without any prior permission, but it is not in consonance with the Article 301 of the Indian Constitution of India which states that transaction related with trade and commerce shall be free throughout the territory.
By an enactment and notification of these new Rules, hue and cry has been done at large level. As it infringes the Article 19 (1)(g) of the Indian Constitution- the right to trade and practice. In addition Article 21 for Right to livelihood, Right to one’s food choices, right to privacy.

Issues and challenges in the livestock market

Since, according to the global report on meat exports, India is presently the world’s leader in meat exports of buffalos. With the pace of time it has increased with the rate 29% between 2007-08 and 2015-16, from Rs3,533 crore to Rs 26,685 crore (13,14,158.05 Metric Tons).

The major issue regarding the cattle trade is that, the new rules have made it difficult for the farmers those are likely to dispose their spent cattle to traders and then generally buy buffaloes from the owner (farmer) and then deliver them to the slaughter houses.

Another major concern is that these new rules have lengthy process with an inclusion of paperwork, undertakings, registration etc. for traders as well as farmers, with an objective to ensure that the cattle must not reach to the slaughter house.

Advantages of Regulation of Livestock Markets Rules

To eradicate some illegal activities such as smuggling and slaughter, the rules will ensure the traceability and safety of cattle.

New rule has given as assumption that this move may give benefit to the dairy industries.

The farmers due to the fall in the economic value of those cattle those are unable to give milk, especially those animals like buffaloes which are subjected to be slaughter for meat will recover this gap or to fill lost incomes there will be an inclusion of high rated milk prices. There is a rigorous process which prohibits farmers to deliver or transport the cattle.

Final thoughts

The Rules damage several by infringing their rights and profit none, except a few animals, upon whom no express basic rights square measure bestowed by the Constitution. This ostensibly man-vs-animal plot in impact sets men against men and has the potential to vitiate the harmonious atmosphere of our society

The prime focus of the regulation is to shield the animals from cruelty and to not regulate the present change oxen for slaughter homes. It’s envisaged that welfare of oxen dealt within the market are ensured which solely healthy animals are listed for agriculture functions for the advantages of the farmers.

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In this article, Shivendra Pandey answers the question, Is it Legal in India to marry girl a below 18 years of age?

Indian society has been plagued by the child marriage since a very long time. It has marred the Indian society at global level. In India due to different factors child marriages have existed for such a prolonged period such as ignorance, customs and traditions, beliefs, gender differences, low level of education and considering women as a financial burden. British first passed a law in 1929 which had penal provisions against males and parents encouraging child marriage. But it proved to be ineffective as the punishment and fine were non-deterrent. Later in the year 2006 a new legislation was passed enacted in the form of Prohibition of Child Marriage Act, 2006.

What does the present law state?

The new Act (Prohibition of Child Marriage Act, 2006) envisages preventing child marriages with enhanced punishments.

As per section 3(1) of the 2006 Act:

“Every child marriage, whether solemnised before or after the commencement of this Act, shall be voidable at the option of the contracting party who was a child at the time of the marriage.”

Further Section (12) states the conditions under which a marriage with a minor is void:

“Marriage of a minor child to be void in certain circumstances.-

Where a child, being a minor-

(a) is taken or enticed out of the keeping of the lawful guardian; or

(b) by force compelled, or by any deceitful means induced to go from any place; or

(c) is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes, such marriage shall be null and void.

In simple terms it can be said that a girl in India can’t marry before the age of 18, and a boy before 21 as per the present laws. In the last few years this Act has been put to task to accommodate with the changing social conditions in the Indian diaspora. There are various Personal Laws vested with the citizens of different communities.

Legality of marrying a girl below 18 under the Hindu Marriage Act

Under the present Hindu Marriage Act (HMA), only the parties to a child marriage are punishable even if they had not consented to the union. The Act lacks any provision for punishing parents or guardians or people who solemnised the child marriage. A plea for annulment of marriage by the girl would be accepted only if she was married off before attaining the age of 15 and she challenges the marriage before attaining 18 years of age. However, there is no express provision to prohibit child marriage per se(which even makes such marriage void completely).

Marriage Under The Muslim Personal Law (Legality of marrying a girl below 18 under the Muslim Personal Law)

As Muslim law is uncodified in India. Due to which, its provisions have to be interpreted by Quran by scholars. Under the present Muslim law, there is no bar to child marriage. A guardian has a right as per Quran to get their child married. The married couple has also ‘option of puberty’ referred as “khayar-ul-bulugh” where they can repudiate the marriage after attaining puberty. However, such repudiation must come before they turn 18 and only if the marriage has not been consummated. Hence the age of marriage under Muslim law is the age of puberty that is 15 years. However, a marriage before children reaching age of 7 even if contracted by a lawful guardian, would be void ab initio.

Marriage Under The Indian Christian Marriage Act (ICMA)

ICMA provides that a preliminary notice is to be issued 14 days prior to the marriage if the marriage is to be contracted between minors. After the expiration of the said period, the parties can go on with the marriage without the consent of their guardians.

Recent controversies regarding the Act

The biggest controversy is “What is the right age of consent?”. This question has puzzled the whole judicial system as well as the legislature. As there have been many instances where a minor (a girl below 18 years of age as per the law) has willingly decided to marry a major beaus (partner). There have been several cases where it was found that a minor had willingly chosen to marry and later his partner had to suffer legal consequences whereas such minor was considered innocent.

In India there are Personal laws provided to differetances has caused conflict between personal laws and the Marriage Prohibition Act (also referred as secular law) and judicial pronouncements have time and again highlighted that there is an overriding effect of secular law over the personal law. However, still there are inconsistencies in the judgments of various high courts.

The Delhi High Court in Lajja v State held that

PCMA (Prohibition of Child Marriage Act) should prevail over personal laws. The same was reiterated by The Karnataka High Court in Seema Beghum v State in 2013. However later in 2014, Gujarat High Court in Yusuf Ibrahim Mohammad Lokhat v State of Gujarat held that:

“According to the personal Law of Muslims, the girl no sooner she attains the puberty or completes the 15 years, whichever is earlier, is competent to get married without the consent of her parents”. This clearly gives the idea that according to the learned judges, the personal laws should be taken as a primary source to decide the cases of underage marriage.”

Recently in the year 2015, the Hon’ble Madras High Court declared that PCMA is applicable to every community and is not against the Muslim law. There are no judgements by Supreme Court to settle this point. Thus, there lies a state of ambiguity and irregularity that is yet to be resolved.

Law Commission’s view on legal status of marriage before attaining majority

18th Law commission headed by Justice A.R Lakshamanan in its 205th in the year 2008 Report suggested that marriage between boys and girls between the age of 16 and 18 years should be made voidable at the option of either party by a court decree. Further the commission suggested that the age sexual consent should be increased from 15 to 16 years regardless of marriage.

An amendment bill was introduced in the Lok Sabha in the year 2016 it is yet to be passed. A copy of the amendment bill is available at: <http://164.100.47.4/billstexts/LSBillTexts/AsIntroduced/5332LS.pdf>

Possible solutions

According to UNICEF, the best way to delay marriage among children is to retain them in school longer. As per the Indian law, a child is entitled to ‘free and compulsory education’ only upto 14 years of age and all around India there have been large no of dropouts of children from economically weaker backgrounds after the age of 14. It will be a remarkable step in if ‘Right to Education’ (RTE) is extended to all children of 18 years of age. This will help in bridging the gap between legal age for marriage and also reduce financial burden of parents to facilitate children to continue their education. Such youths would be much more mature and career oriented. Child marriage is a menace to our society and just making laws is not enough effective implementation is the key for its success.

Introduction

The concept of trade secret is not new in Indian subcontinent but which has not been dealt properly in the past. The domain of trade secret is pretty much wide as it fits into extensive framework of contract, competition, and Intellectual Property Rights. If the trade secret is leaked the present law is inconsistent in providing remedies properly. Over the years, Companies lost billions of dollars. Generally, trade secrets are considered as part of Intellectual Property Rights but varies according to jurisdiction.

What are Trade Secrets?

Any information confidential in nature and involve economic interest of the owner in obtaining an economic advantage over competitors considered a trade secret. Trade secret in common terms protects technological and commercial confidential information not generally known in the trade and prevents unauthorized access by others. North American Trade Agreement (NAFTA) defines a trade secret as “information having commercial value, which is not in public domain and for which reasonable steps have been taken to maintain its secrecy.” Generally speaking, a trade secret is usually defined in broad terms and includes or refers to a practice, manufacturing process, sales method, distribution method, consumer profiles, advertising strategies instrument, design, lists of suppliers and clients or a compilation of data or information related to business not commonly known to the public and which the owner reasonably attempts to keep secret and confidential.

However, there are three main factors, which can be component in all such definitions. They are:-

It should not be generally known or easily accessible by people who normally deal with such type of information.
It must have commercial value as a secret; and
The lawful owner must take reasonable efforts to maintain its secrecy.

Trade Secrets are being part of Intellectual Property Rights can be significantly valuable to a company’s growth and sometimes even for its survival. A trade secret protects from exploitation by those who obtain the information unauthorized either obtain access through improper means or through those who know improper means or by doing illegal practices in respect of confidential information include industrial or commercial espionage, breach of contract and breach of confidence.

Generally, Every business has at least some trade secrets, they are quite delicate because they protect information and resources that are secret, which means the protection is lost if and when other forms of intellectual property protection are available, like patent or copyright protection, one should carefully taken into consideration the character of relying only on trade secret protection.

Well known examples of trade secrets include the formula of Coca-Cola since one of the ingredient may have been cocaine, instead of patenting its formula company choose to brand the recipe as trade secret and the decided to keep the recipe as confidential information and the secret ingredients for KFC’s original recipe were kept in Colonel Sander’s head. He eventually wrote the recipe down, and the original handwritten copy is in a Kentucky Few selected employees know the recipe, and are bound by a confidentiality agreement.

Infringement of Trade Secrets

A company has a right to protect its confidential information or trade secret and keep others away from misappropriating and using his trade secrets. However, most often infringement is done by former employees by misappropriating confidential information sometimes result in corporate espionage, using such information for new businesses or for new employers. Trade secret protection continues as long as requirement of protection serve some value to the company or the owner. Owner of the trade secret need to take few reasonable steps to protect it from infringement or breach, the protection is lost if failed to do keep the information secret.

There are quite a few points which can be useful in protecting the confidentiality of information or trade secrets:

If you are disclosing information to a third party like consultants and vendors about a trade secret, you should get confidentiality agreement signed by that party prior to disclosure of such important information.
People who can access to such confidential information should be limited in number.
Ensure that all the employees should sign a non-disclosure agreement, which would provide that they have to maintain confidential specific information that is known to them.
Maintain a clear record of all business activities and deals that may contain any confidential information.

Present Scenario of protection of trade Secret in India

Protection of trade secret in India has not been a subject of much discussion in the past but currently, trade secrets a recognized form of Intellectual Property Rights, although there is no specific dedicated legislation in India to protect trade secrets and confidential information. Indian courts continue to enforce these under contractually or under common law action of breach of confidence, which in effect amounts a breach of contractual obligation also protects trade secrets on the basis of principles of equity. Giving emphasizes on this, the Calcutta High Court in the fairfest Media Ltd V. ITE group Plc and Ors, stated that “the essence of this branch of law whatever the origin it may be,, a person who has obtained information in confidence is not allowed to use it as springboard for activities detrimental to the person who made the confidential communications. In Niranjan Shankar Golikari v. The Century Spinning & Mfg. Co. Ltd. Supreme court upheld that an injunction to enforce negative contract, which is restricted as to time, can be issued in order to protect the employer’s interest.

In India, a person can be contractually bound not to disclose any information that is revealed to him in confidence otherwise it would be breach of confidence. The Indian courts have upheld a restrictive clause in a technology transfer agreement, which imposes negative contract on licensee not to disclose or use the confidential information received under the agreement for any other purpose than the agreed in the said agreement. John Richard Brady and Ors. V. Chemical Process equipments P. Ltd. and Anr. Process equipments P. Ltd. and Anr. In which the defendants had got the drawings if the fodder production unit from the plaintiff for a limited purpose of providing a certain part required in the plant. In this Delhi High Court invoked a wider equitable jurisdiction and awarded injunction even in the absence of the contract. That means the situation of protection of trade secret is still unclear in India. In the matter of Gopal Paper Mills Ltd v. Surendra K Ganeshdas Malhotra, the Calcutta High Court upheld the restrictive clause in an employment contract, imposing constraints on the employee preventing him from misusing or revealing the confidential information and trade secrets acquired during the tenure of his employment. The Legislation thus provided a remedy to organizations from third party disclosure of confidential information and trade secrets in the form of injunction against the employee.

Basically, a remedy available to the owner of trade secrets is to obtain an injunction preventing the licensee from disclosing the confidential information and return all confidential or proprietary information compensation for any losses suffered due to disclosure of trade secrets. The Indian case laws have tried to address various features of trade secret protection whether it is defining trade secret/confidential information or the basis under which trade secrets can be protected or the scope of remedies can be provided. Indian courts have drawn extensively from English case laws, they are now increasingly relying upon the growing body of domestic jurisprudence on trade secret protection.

Why proper mechanism on Trade Secret Protection is need of the hour in India

Protection of trade secret is really important and proper policy is need of the hour as it is the fundamental to innovative ideas or steps. Foreign companies who are eager to invest and ready to set up Research & Development facilities in India are having only apprehension of insufficient statute that specifically governs the protection of trade secret and this inadequate legal framework creates uncertainty over the circumstances under which trade secret can be protected and judicial relief would be available in Indian courts. Foreign investors want to be assured of the protection of their trade secrets, so that they can do business in India. A proper effective law further enhance the security in our own industry.

Proposed Legislation in India for the Protection of Trade Secret

In the year of 2008, second term of UPA regime, the Department of Science and Technology, as the part of the Ministry of Science and Technology, published draft legislation titled “The National Innovation Act of 2008” to facilitate public, private or public- private partnership initiatives for building an innovation support to encourage innovation and to codify and consolidate the law of confidentiality in aid of protecting Confidential information, trade secrets and Innovation. Trade secrets would have been regulated under Chapter VI, titled “Confidentiality and Confidential Information and Remedies and Offences.” the current status of this Act is still unclear.

What India needs is to enact a law similar type of law as in U.S. where The Uniform Trade Secret Act, 1979, and The Economic Espionage Act, 1996 enacted in an effort to provide proper legal framework to protect trade secrets.

How trade secret can be protected?

Contrary to patent and trademark, no registration procedures are involved for the protection of a trade secret, that means trade secrets are protected without any procedural formalities and there is no specified time limit within which the secret may be protected. Subsequently, a trade secret can be protected for an unlimited period of time. When a trade secret is leaked out, this can be taken to the court as an action of breach of confidence because this leak of the secret is unfair to the business and may have harmful consequences to the enterprise.

Not all information can be considered a trade secret. There are certain conditions for the information to be considered a trade secret which varies from country to country. The Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) recognizes trade secret as confidential information but doesn’t provide any mechanism for its enforcement. However, Article 39 of the TRIPS agreement tries to ensure protection against unfair competition. TRIPS makes it obligatory on member states to ensure protection of undisclosed information under article 39 of the agreement (India is a member state of TRIPS agreement).

Article 39: Natural and legal persons shall have the possibility of preventing information lawfully within their control from being disclosed to, acquired by, or used by others without their consent in a manner contrary to honest commercial practices so long as such information

is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;
has commercial value because it is secret; and
has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.

The TRIPS agreement also requires member states to provide effective remedies for trade secret misappropriation including:

Injunctions

Article 44 of TRIPS agreement says, The judicial authorities shall have the authority to order a party to desist from an infringement, inter alias to prevent the entry into the channels of commerce in their jurisdiction of imported goods that involve the infringement of an intellectual property right, immediately after customs clearance of such goods. Members are not obliged to accord such authority in respect of protected subject matter acquired or ordered by a person prior to knowing or having reasonable grounds to know that dealing in such subject matter would entail the infringement of an intellectual property right.

Damages

Article 45 provides,

The judicial authorities shall have the authority to order the infringer to pay the right holder damages adequate to compensate for the injury the right holder has suffered for an infringement of that person’s intellectual property right by an infringer who knowingly, or with reasonable grounds to know, engaged in infringing activity.
The judicial authorities shall also have the authority to order the infringer to pay the right holder expenses, which may include appropriate attorney’s fees. In appropriate cases, Members may authorize the judicial authorities to order recovery of profits and/or payment of pre-established damages even where the infringer did not knowingly, or with reasonable grounds to know, engage in infringing activity.

Other Remedies like prevent further infringement and preserve evidence

Article 46 provides, In order to create an effective deterrent to infringement, the judicial authorities shall have the authority to order that goods that they have found to be infringing be, without compensation of any sort, disposed of outside the channels of commerce in such a manner as to avoid any harm caused to the right holder, or, unless this would be contrary to existing constitutional requirements, destroyed. The judicial authorities shall also have the authority to order that materials and implements the predominant use of which has been in the creation of the infringing goods be, without compensation of any sort, disposed of outside the channels of commerce in such a manner as to minimize the risks of further infringements. In considering such requests, the need for proportionality between the seriousness of the infringement and the remedies ordered as well as the interests of third parties shall be taken into account. In regard to counterfeit trademark goods, the simple removal of the trademark unlawfully affixed shall not be sufficient, other than in exceptional cases, to permit release of the goods into the channels of commerce.

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