In this article, Kanti, a student of the University of Delhi, talks about the format rights and their enforceability in India.   

Introduction

What are format rights?

Format rights, as the name suggests are rights to the format of television programmes. It may be the structures replicated in each episode of the programme or in each series of the programme or a combination of both. It is a commonly traded intellectual property within the Television Industry, but the challenge lies in their unauthorized use.

Requirements for format rights

• It is not enough for the idea of the format to be original, the description in the document should not only express the creativity of the owner but also the intellectual effort claimed to be invested in it.
• There must be a number of concrete elements in the format to be considered as a copyright-protected format.
• It should be possible to visualise an episode based on the elements of the format given in the document.

A bleak description of a few ideas which could also be used in different television shows with different characteristics cannot be a protected format.

A format registered with a network can be licensed to other channels across the world so that it can be reproduced according to the nationality and interests of the audience.

Examples of copyrighted formats

Mainly unscripted reality television shows such as ‘Who wants to be a millionaire? (Kaun Banega Crorepati in India)’, ‘Big Brother (Big Boss in India)’ etc. have been remade in multiple markets across the world.

Green v Broadcasting Corporation of New Zealand Case[1]

In this case, celebrated British presenter Hughie Green objected to the unauthorized adaptation of his TV Show ‘Opportunity Knocks’ by a production house in New Zealand. He claimed copyright to the script and dramatic format of the show. These were the title, the use of various catchphrases, the use of a device called a ‘clapometer’ to monitor audience reaction and the use of sponsors to introduce competitors. He failed in his objections because he could not show that his dramatic formats were more than accessories to the show.

The court held that “It is stretching the original use of the word ‘format’ a long way to use it metaphorically to describe the features of a television series such as a talent, quiz or game show which is presented in a particular way, with repeated but unconnected use of set phrases and with the aid of particular accessories.”

Law relating to format rights

Television formats are legally considered to be intellectual property which is regularly bought and sold by television companies, broadcasters, and distribution agencies. Format copying is inevitable in today’s world. There is no specific law around the world that protect ‘television formats’. Conventions state that there are two forms of television formats:

1. Paper (unpublished) formats
2. Published (produced) formats

Paper formats are those unpublished structures of a show mainly written to forward the idea or concept of the show to the producers, whereas Published formats are those structures which have been produced and converted into a Television show which can be licensed to protect it from format copying.

Though there is no specific law protecting formats, many countries have used other methods of protection including copyright law, passing off, unfair competition or breach of confidence, contract law, civil law etc.

Position in India

Television is a huge form of entertainment in India which has a lot of programmes in several languages. There is no concept of ‘format rights’ in India. But in various cases, one can see that it is protected as an Intellectual Property such Copyright, Trademark etc.

Enforceability of Format Rights in India

Copyright Act, 1957

The Copyright Act in India seeks to protect original works of artists, musicians, writers, and others. Copyright Act protects the expression of an idea and not the idea itself. Thus, making it difficult or non-existent to protect unpublished ‘paper’ formats. But the Courts have in their rulings given rise to the need for protection of TV formats in India.

Anil Gupta and Anr v. Kunal Dasgupta and Ors [4]

In this significant judgement, The Delhi High Court found that Sony Entertainment Television had misappropriated confidential information provided to it by one Mr. Anil Gupta and created a new tv show based on the said information. Mr. Anil Gupta was a media consultant who came up with an idea for a television programme titled ‘Swayamvar’ and provided written notes, oral presentations describing the format to the company using which the created their own show “Shubh Vivaah”. Mr. Anil Gupta started proceedings restraining Sony TV from airing the show. The Court held in favour of Mr. Gupta and stated that:

“Ideas, concepts and programme themes are raw materials for the entertainment industry and their protection is vital. When an idea is developed to a stage where it is actualised then the concept is capable of being a subject of ‘confidential information’”

Celador Productions Ltd v Mehrotra Gaurav[5]

The defendant, in this case, started a website which contained the online version of ‘Kaun Banega Crorepati?’ based on the international TV show, ‘Who wants to be a Millionaire?’. The plaintiffs alleged that certain elements were reproduced in the website such as images, logos, music and other elements. The defendant was sued in Delhi High Court for infringement of the trademark. The Court granted an injunction to prohibit the online game from continuing.  

Urmi Juvekar Chiang v Global Broadcast News Ltd & Another [6]

Urmi Juvekar Chiang, a noted scriptwriter created a TV format about citizen activism and solving civic problems. This idea was fixed in the form of a concept note and a production plan. The idea was presented to a channel CNN-IBN who created and broadcast their own show based on the format given by Chiang. Chiang sued CNN-IBN on two counts:

1. Breach of confidential information
2. Copyright infringement

The Court while deciding in favour of Chiang held the Copyright law not only protected the concept note but also allowed for the breach of confidence which occurred in the present case.

Twentieth Century Fox Film Corporation v Zee Telefilms Ltd & Ors [7]

In this case, the plaintiff alleged that the serial Time Bomb created by the defendant was an unauthorized use of his serial 24. But the court rejected the contentions raised by the plaintiff and held that the themes which both the serials share is a general topic, but the storyline of defendant’s serial is substantially different from the plaintiff’s serial. The Court further stated that mere similarity in the presentation of the serial cannot be said a valid ground to claim copyright protection.

The court laid down some important guiding principles regarding format rights-

• In order to claim that their work is copied, it needs to be established that a substantial part has been copied and this substantiality must be regarding quality, not quantity.
• Substantiality should be determined by individually examining the similarities between the programmes and then it should be considered whether the entirety of what had been copied represents a substantial part of the plaintiff’s programme.
• There is no copyright protection for an idea, concept, principle or discovery, it must be original to be protected.
• A mere outline or theme cannot be protected because theme or outline is not an intellectual property.
• However, a distinctive and unique treatment of a plot or theme is copyrightable as a literary work or as a dramatic work.

How to protect format rights?

If someone else other than the owner of the work infringes certain exclusive rights without permission given to the owner, then the owner can claim three types of remedies i.e civil, criminal and administrative. To know more on this, READ HERE.

How to register format rights?

Firstly, it is not necessary to register a work to claim copyright. The copyright is acquired automatically. But in case of any dispute of ownership of copyright, certificate of ownership is the prima facie evidence in the court of law.

To provide registration facilities for all types of work under copyright, the Copyright Office has been set up at B.2/W.3, C.R. Barracks, Kasturba Gandhi Marg, New Delhi.

The applicant can apply for registration online through “E-filing facility” where the applicants can file the application at the time and place chosen by them.

The procedure for registration is as follows

1. Application of registration on Form IV as mentioned in the first Schedule of the Rules.
2. Separate applications shall be made for every work along with the requisite fee as mentioned in the second schedule.
3. The applicant or the advocate( in whose favour a vakalatnama has been executed) should sign the application. Vakalatnama signed by the party and accepted by the advocate should also be enclosed.

Both types of works, published and unpublished can be registered. Even if the work was published before the Copyright Act,1957 came into force and still enjoy the copyright, can also be registered.

Three copies, in case of unpublished work and one copy, in case of published work should be sent along with the application. In case of unpublished work, the application has a discretion that he/she can send only extracts of unpublished work and can ask for the return of the extracts once it has been stamped with the seal of the Copyright Office.

Points to keep in mind

• Ideas, in order to be protected, must be expressed. The best way to get protection is by writing down the idea.
• As you develop your format, document everything like hard copy records of every proposal and all emails related to the project. The more detailed the format is, the harder is for anyone to claim it as theirs.
• You can register ‘titles’ and ‘catchphrases’ under Trademarks.
• Keep it confidential – do not share your idea with people other than those required to know.
• A distinctive and unique treatment of a plot or theme is copyrightable as a literary work or as a dramatic work.

Position in the United States of America (USA)

Format rights in the United States are protected under copyright law.

In the case of Sid & Marty Krofft Television Productions, Inc. v. Mcdonald’s Corporation[2] laid down a two-part test to determine similarity –

• Extrinsic Test – to determine whether there is a substantial similarity in ideas
• Intrinsic Test – compares forms of expressions and determines similarity based on the response of the ordinary reasonable person.

Position in the United Kingdom (UK)

Format laws do not exist in the legal system of the United Kingdom. An attempt was made to recognize ‘formats’ of television shows by the British Broadcasting Bill, 1990 which was brought forward due to the ‘Opportunity Knocks’ case. This bill recognized both format proposal and a format programme. This Bill defining ‘television formats’ never saw the light of day due to the vagueness of the definition.  

Banner Universal Motion Pictures Limited v Endemol Shine Group Limited & others [3]

In this recent case, the High Court of England and Wales held that that a particular television format did not qualify for copyright protection as a dramatic work as its contents were unclear and lacking in specifics. The court said that the TV format was so vague that is cannot be protected as confidential information. It is very difficult to obtain copyright protection in case of TV formats unless the document very specifically expresses of being a dramatic work.

FRAPA (The Format Recognition and Protection Association) is a European organization which aims to ensure that television formats are respected by the industry and protected by law as an intellectual property.

Conclusion

In the highly competitive television shows market, each producer looks for a sure-shot or a ‘hit’ for his programme. This is where television formats come to the rescue. Alongside with its immense growth, concerns on its legal protection have risen too, mainly because there is no particular law protecting format rights.

In India, the courts have recognized format rights which are copyrightable only in case of breach of confidentiality.

So far, there has not been any conclusive judgement by Indian Courts on the “Protectability” of format rights in the absence of a confidentiality agreement.

References

[1] [1989] RPC 700, [1989] UKPC 26

[2] 562 F.2d 1157

[3] [2017] EWHC 2600 (Ch)

[4] 2002 IVAD Delhi 390, AIR 2002 Delhi 379, 97 (2002) DLT 257

[5] 96 (2002) DLT 543, 2003 (26) PTC 140 Del

[6] 2008 (2) BomCR 400, 2007 (109) Bom L R 981, MIPR 2007 (2) 223, 2008 (36) PTC 377 Bom  

[7] 2012 (51)PTC 465 (Del)

The post What are format rights? Are these rights enforceable in India? appeared first on iPleaders.

This article is written by Kanti, a student of the University of Delhi. In this topic, she talks in detail about the procedure required in setting-up a microfinance in different ways.

Introduction

Microfinance company also known as Micro Finance Institution is a type of institution which provides a small amount of loan up to INR 50,000 primarily in rural and semi-rural areas where other banking facilities are not easily accessible.

In India, only Non-Banking Finance Companies are allowed to do finance business, but some other institutions are also given the leverage to do such activities to an extent.

Modes to register a microfinance company

• Through NBFC- It requires a minimum capital of INR 5 crore.
• Through Section 8 of Companies Act, 2013- No minimum capital is required.

But not all of the NBFCs are allowed to take deposits from the people. To have the taking deposits status, a different application has to be filed with the RBI.

Registration through NBFC

To start a microfinance company as NBFC, one has to get a license from the Reserve Bank of India under Section 45I(a) of the RBI Act, 1934 and this whole process may take months to complete.

What are the requirements for registration with RBI?

A company desirous of commencing the business of non-banking financial institution should comply with the following:

1. It should be a company registered under section 3 of the Companies Act, 2013.
2. It should have a minimum net owned fund of INR 2 Crore.

The following steps are involved in the registration –

#STEP 1: REGISTRATION

The first step to start a microfinance company is to register the company as a private or public company under the Companies Act. Initially, the company can be registered with INR 1 Lakh.

#STEP 2: CAPITAL

The minimum net worth required to register an NBFC is INR 2 Crore. So the next step is to raise the share capital both authorized and paid up up to the required amount.

#STEP 3: FIXED DEPOSIT

The next step is to get to deposit the sum of INR 2 crore in the Fixed Deposit in a freshly opened account and get a ‘no lien’ certificate from the bank. This certificate is needed when the application is filed with RBI.

#STEP 4: DOCUMENTS REQUIRED FOR ONLINE APPLICATION

To fill the online application available on the RBI website, the following documents are required-

• Duly certified Copies of Certificate of Registration.
• Certified copies of only the main object clause in the MOA relating to the financial business.
• Copy of Board resolution along with the self-declaration on behalf of the company that applicant company shall follow all the rules, regulations and notifications issued by RBI.
• A copy auditor’s report of Fixed deposit receipt & bankers certificate of lien indicating balances in support of Net Owned Funds (NOF).
• Bankers Report for applicant company, group companies.
• Certified copies of the highest educational and professional qualifications of all the directors of the applicant company.

#STEP 5: ONLINE APPLICATION

• Go to the provided link https://cosmos.rbi.org.in.
• Click on the “CLICK HERE” for company registration on the registration page.
• A window will be displayed showing the excel application available for download.
• Download the suitable application form (NBFC or SC/RC).
• Fill up the application form.
• Upload it to the same website.

The company would then be issued a Company Application Reference (CoA) Number for the application filled online.

#STEP 6: SUBMIT THE HARDCOPY TO REGIONAL OFFICE

Once the application has been filed online, the hard copy of the application indicating the online CoA number along with the supporting documents shall be submitted to the concerned Regional Office by the applicant company.The company can always track the status of the application form by logging into the above-mentioned address using the CoA Number.

Total Cost for Registration

The total cost for NBFC registration is around INR 4-5 lakhs including professional fees and RBI fees.

Who Can Borrow Loan From MFI (Microfinance Institutions)

An individual borrower with a total annual income not exceeding INR 1,00,000 in rural areas or INR 1,60,000 in urban and semi-urban can take loans up to INR 1 Lakh from two MFIs at the most. MFIs, in the first cycle of the loan, can disburse up to INR 60,000.

*** Documents Required initially to start the Business

If you are willing to register a Private Limited Company for NBFC registration, then you shall need at least two persons to start with. The minimum documents required for registration are as follows:

• Copy of PAN CARD
• ID Proof (Driving License, Passport, Aadhaar Card, Voter ID) – anyone
• Address Proof (Bank Statement, electricity bill, Mobile Bill, Telephone Bill) –anyone
• Passport Size photo

Apart from the above, we need the following documents for registered office registration:

• Rent agreement or ownership documents
• Electricity bill
• A copy of No Objection Certificate (NOC) from the owner.

REGISTRATION THROUGH SECTION 8

The second way is to register a section 8 company & apply for central government licenses features of which are as follows:

• • Maximum INR 50,000 can be given for the business purpose and INR 125,000 for the residential dwelling.
• No minimum net owned fund requirement.
• No RBI approval is required since RBI has exempted such companies from registration.

The registration procedure can be divided into 7 steps. Let us read the process in detail:

#STEP 1: APPLY FOR DSC AND DIN

This is the first step towards initiating the section 8 company registration. One can go to this website http://www.mca.gov.in MCA services DSC Services/ DIN Services.

DSC– An applicant who wants to get his Digital Signature Certificate(DSC) issued can go to the Certifying Authorities directly with the required documents in original and self-attested copies of the same. Some CAs also provide Aadhar eKYC based authentication also.

DIN

1. Any person who intends to apply for DIN shall have to make an application in eForm DIR-3 and should attach the following documents along with the form-

• Photograph and the scanned copy of supporting documents which are required.
• Verification by the applicant containing the name, father’s name, date of birth, present address, a text of declaration and physical signature of the applicant.
• Digital signature.

1. The eForm shall be uploaded on the MCA21 portal and shall be digitally signed.
2. Once the form has been uploaded, the fees for the DIR-3 form shall be paid through electronic means only (i.e. Netbanking/ Credit Card).
3. After successful payment of the fees, the applicant should register himself/herself on the MCA21 portal page. By using the login id given, log in to the same page and upload the eForm DIR-3 on ‘eForm upload’
4. Once the form is uploaded and payment is made, approved DIN shall be generated and if the details are identified as potential duplicate, Provisional DIN shall be generated. In such cases, the MCA DIN cell will examine the eForm DIR-3 and same shall be disposed of within one or two days.

#STEP 2: APPLY FOR NAME APPROVAL

This is the second step towards registering the section 8 company. The name may end with the words like Sanstha, foundation etc. Microcredit can also be used in the company name. One has to provide minimum 3 different names and maximum 6 names. Additionally, the name must be suggestive of company’s work. Fill INC-1 form available on the same website to register the name.

#STEP 3: MOA and AOA

After the name has been approved, draft the MOA (Memorandum of Association) and AOA(Articles of Association) and then file them along with the following documents in eForm INC 12 for the issuance of license-

1. INC-13 Memorandum of Association
2. Article of Association
3. INC-15 Declaration by each Subscriber to MOA (On Non- judicial stamp paper of INR 100/- and duly notarized).
4. A statement describing an estimate of Income & Expenditure for the next three years and it should be signed by the proposed promoters.
5. List of proposed Promoters and Directors of the Company.
6. The Subscribers page (AoA & MoA), handwritten by the subscribers and witness.

Once the Form INC 12 has been approved, a license under section 8 of the Companies Act,2013 will be issued in Form INC-16.

#STEP 4: FILING OF INCORPORATION FORMS ON MCA PORTAL

After the license has been issued, the applicant is required to fill the following forms-

I.Form No. INC – 7 (Application for incorporation of the Company) along with the following attachments:

1. Memorandum of Association
2. AoA Declaration in Form No. INC-8
3. An affidavit from the subscribers to the memorandum in Form No.INC-9
4. Proof of residential address of Subscribers
5. Specimen Signature in Form No. INC-10
6. Proof of Identity of Subscribers (NOC in case there is a change in the promoters after name approval).
7. PAN card.

II. Form No. INC – 22 (notice of situation of registered office) along with the following attachments:

1.Conveyance/Lease Deed/ Rent Agreement (Proof of ownership)

1. Electricity Bill Not older than 2 months.
2. No Objection Certificate.

III. Form No. DIR – 12 ( for the appointment of directors of the company) along with the following attachments:

1.DIR-2 (consent to act as Directors)

2.Affidavit by the Directors for Not accepting Deposits (On Non- judicial stamp paper of INR 100/- and duly notarized).

1. INC-9 Declaration by each Subscriber to Memorandum of Association (On Non- judicial stamp paper of INR 100/- and duly notarized).

#STEP 5: CERTIFICATE OF INCORPORATION

A Certificate of Incorporation is issued by the Registrar of Companies along with a unique Company Identification Number (CIN) if the Concerned ROC is satisfied with the incorporation forms.

#STEP 6: PAN and TAN

Nowadays, the PAN and TAN are allotted once the company is formed. The physical copy of PAN card is sent via speed post at the registered office of the company.

Now, let us quickly see the difference between Microfinance through section 8 company and NBFC

Conclusion

The major challenge one can face in this business is already established financial institutions such as banks, money lending firms etc. who are offering the same services which you intend to provide. The only way to handle this challenge is to create your own market. Though practically it is advised to start with section 8 company as it is a low-cost process.

The post How to set up a microfinance company appeared first on iPleaders.

In this article, Himanshu Mene discusses the Concept of Institutional arbitration.

Abstract

In the past decade, it has been observed that parties are hesitating in choosing India as a preferred seat of arbitration and moving towards international arbitral tribunals such London Court of International Arbitration or Singapore arbitral institutions. These institutions provide better facilities and quick disposal of dispute. On the other hand, the concept of arbitration has completely destroyed the very essence of alternative dispute resolution it neither cheap nor competent enough to resolve a dispute.

Introduction

India is slowly moving towards a modern economy. As per the OECD 2017 economic survey India’s growth was marked at 7.5% which made India the fastest growing G20 economy. [1] Its GDP (Gross Domestic Product) is expanding rapidly. Since two decades it has been a priority for policymakers to provide better investment opportunities and a hassle free trade mechanism.[2] At the same time, Indian lawmakers are focusing to provide better provisions of enforcing contracts and quick and easy of means for resolution of disputes.

India is progressing towards improving its global perception of doing business in India. According to the World Bank’s rating on Ease of Doing Business 2018, India ranked 100 out of 190 countries as compared to 131 in 2016.[3] According to areas tracked by Doing Business in 2016-2017 India was amongst the top 10 economies improving the most in reforms reducing complexity, cost of the regulatory process in the area of starting a new business, getting credit facilities and improving in the area of trading across borders.[4]

Even after prioritising all the reforms India still has a less effective legal system. It is a known fact that India has huge pendency of cases in various courts. As of 10.02.0218, there are more the 25 million cases pending.[5] As a World Bank’s study, India is ranked as 164 on the ease of enforcing contracts and still takes 1,445 days to resolve a dispute. The cost for dispute resolution is 31% of the Claim value. The quality of judicial process which includes court structure and proceedings, case management, court automation and alternative dispute resolution is also poor it is indexed at 10 out of 18.[6]

The above-mentioned statistics have been consistently present in the India judicial system. These statistics were driving away all the investors away from India. There was a die-hard need felt for out of court dispute resolution system to speed up the dispute resolution. Due to which various forms of Alternative Dispute Resolution mechanisms were introduced namely Arbitration, Conciliation, Negotiation and, Mediation.

The then Arbitration Act of 1940 was discouraged heavily on the ground of too much judicial intervention and lack of smooth proceedings.[7] Consequently, the Arbitration and Conciliation Act, 1996, based on the 1985 United Nations International Commission on International Trade Law (UNICTRAL) model law and rules, was enacted.

Due to its flexibility and unique process arbitration becomes the celebrated dispute resolution mechanism in international trade disputes. India now aimed to encourage arbitration and started making efforts to become a hub for international arbitration. Further to reach the desired goal the 1996 Act which led to various practical problems crucial changes were brought by Arbitration and Conciliation (Amendment) Act, 2015. In addition to this amendment, a new statute came into existence which was aimed at revitalising India’s commercial dispute resolution ecosystem.

However, there were certain issues felt in making India a Global Arbitration. In a global conference organised by NITI Aayog on “National Initiative towards Strengthening Arbitration and Enforcement in India”, there were three areas where drudgery was needed. Firstly, there was a need to restructure the framework governing the arbitration. Secondly, there is a deficit in infrastructural support to encourage international arbitration. Thirdly, need to create awareness regarding arbitration as the best mode for dispute resolution. [8]

To encourage the dispute resolution through arbitration there is need to promote institutional arbitration in India. It is well-known fact that arbitration in India is predominantly conducted through the ad-hoc method and institutional method is not preferred. In the year 2016 out of 307 cases administered by Singapore International Arbitration Centre (SIAC) 153 involved Indians.[9]

In the recent times, there are steps being taken to promote institutional arbitration. In a recent discussion in the 8^th BRICS summit at Goa, a creation of BRICS-Centric arbitration centre was deliberate, with the aim of offering services on arbitrating international commercial disputes between BRICS countries.[10]

In December 2016, a High-Level committee to review the institutionalisation of arbitration mechanism in India was created under the chairmanship of Justice (Retd.) B.N. Srikrishna. The objective of this committee was to identify issues in the arbitration process and to find out the challenges faced in the development of institutional arbitration.[11]  The committee has submitted a report titled “Report of the High-Level Committee to Review the Institutionalisation of Arbitration Mechanism in India” on August 3, 2017 suggesting reforms to the arbitration in India.

Significance of Arbitration in International Commercial Arbitration

Among all the other alternative dispute resolution mechanisms arbitration is considered as the best technique for resolving commercial disputes. The significance lies in its characteristics.[12] Party’s autonomy allows the whole process consensual and private in nature. It allows the parties to decide the law through which the dispute needs to be resolved. The whole process aims at out of court settlement making it faster and convenient. Theoretically, arbitration can be conducted without judicial intervention. The tribunal is appointed by the parties, its powers and duties are also decided by the parties. It is all included in the arbitration agreement.[13]

An award is made by the tribunal according to the arbitration rules and regulations agreed by the parties. It is ensured by the tribunal that Due process and Principles of Natural justice are followed. According to some thinkers, there is no need of the law to govern the process the agreement enters by the parties is sufficient.

However, there is need of law and courts intervention can be allowed in specific circumstances. According to Lord Mustiill, there is a relationship between courts and arbitration. He puts it as:[14]

“Ideally, the handling of arbitral disputes should resemble a relay race. In the initial stages, before the arbitrators are seized of the dispute, the baton is in the grasp of the court; for at that stage there is no other organisation which could take steps to prevent the arbitration agreement from being ineffectual. When the arbitrators take charge they take over the baton and retain it until they have made an award. At this point, having no longer a function to fulfill, the arbitrators hand back the baton so that the court can, in case of need, lend its coercive powers to the enforcement of the award.”

The above statement though talks about the relation between the litigation and arbitration but it can totally be applied to today’s arbitration system has. It has become a dominant method in resolving the international commercial disputes. The arbitration has become the costly form of dispute resolution. No regulation of Ad-hoc arbitration has led to this situation, nevertheless. Modern arbitration is facilitating the resolution in well organized and cost effective manner through well-institutionalised centers and is contributing to the global economic development.

Concept of Institutional arbitration and Ad-hoc arbitration

It is important to understand that parties are free to choose the method of arbitration. It depends upon the facts and circumstances of their dispute. In India, parties have preferred ad-hoc method of arbitration, whereas internationally institutional arbitration is a preferred method of dispute resolution. Therefore it is important to understand both forms as they are having their own pros and cons.

Meaning of Ad-hoc Arbitration

It can be defined as a method of arbitration under which the parties where parties and the arbitral tribunal will conduct the arbitration according to the procedures which will either be previously agreed upon by the parties or in the absence of such agreement be laid down by the arbitral tribunal at the preliminary meeting once the arbitration has begun.[15]

Therefore under this method, the arbitration is conducted and arranged by the parties themselves and there is no involvement of the third party such as an institution. The proceedings are conducted by an arbitrator appointed as per the agreement between the parties. All the aspects related to arbitration needs to be decided by the parties themselves like the procedure of conducting arbitration, number of the arbitrators, how the appointment would be made, rules and regulations applied to the arbitration.

However, as there is no institution involved in it is important to that the parties agreeing to arbitrate should have the spirit of co-operation and has the intention to accept the award passed by the arbitrator. This process can be the flexible, cheap and less time consuming as there is no administrative body involved in the process.[16]

Features of Ad-hoc arbitration

Ad-hoc arbitration can be the best method of arbitration due to the reason that all the process is depending upon the parties and there is no manner in which any other authority or third party can interfere in it. This allows the parties to resolve the dispute in a faster cheaper and efficient manner.[17] Though according to one school of thought it is the responsibility of the appointed arbitrator to look for the best interest of the parties and administer the entire process in a well-organized manner.

Enhanced Flexibility: As mentioned above the main feature of ad-hoc arbitration is freedom of the parties to decide all the aspects relating to the process. This allows the process to be immensely flexible and party friendly.[18]

Speedy Disposal: The flexibility in deciding the process of dispute it permits the parties to decide and pick laws and rules that would make the process the faster. In some cases, the parties also decide not to discuss certain matters in the arbitration to save time.

Cost Saving: As there is no institution and administrative body involved in the dispute the cost of resolving a dispute comes down to a large extent. The major costs involved in the process is relating to the fees of the arbitrators and experts appointed as adjudicators and representatives to resort the dispute.

Meaning of Institutional Arbitration

It is that method of arbitration where the whole arbitration is conducted by an established arbitral institution or organization. The arbitration agreement itself provides for appointment arbitral institution. The parties specifically provide that the in case of any dispute arises in the period of contract the dispute would be solved through institutional arbitration.

In the case of Nandan Biomatrix Ltd. V D 1 Oils Ltd[19]it was agreed between the parties agreed to the resolve the dispute through institutional arbitration. The issue arose whether not providing specific name of the arbitral institution and only agreeing to resolve the dispute through institutional arbitration would make the arbitration agreement invalid. It was held that as the parties unequivocally agreed to settle the disputes through institutional arbitration and not though ad-hoc arbitration. Therefore, there existed a valid arbitration agreement between the parties.

These intuitions are preferred by the international business community as it provides them various services.[20] Such as providing a specific arbitration procedure, experienced panel of arbitrators and expertise that provide a quick and effective dispute resolution process. Some of the famous arbitral centers are The London Court of International Arbitration (LCIA), The Chartered Institute of Arbitrators UK, The National Arbitration Forum USA and The International Court of Arbitration Paris Singapore International Arbitration Centre, Hong Kong International Arbitration Centre(HKIAC).

Features of Institutional arbitration

There are several major advantages of institutional arbitration as compared to its counter-part ad-hoc arbitration. These intuitions provide for professionals and pre-established infrastructure and rules.[21]

Pre-Determined arbitration procedure: all the popular institutions provide for an arbitration procedure and the saves parties and their lawyers the effort of determining the arbitration procedure and some institution also the provide service of drafting an arbitration clause.

Updated rules in lieu of latest developments: it provides for updated rules taking into consideration the latest developments that are taking place in arbitration practice. This ensures that there is no ambiguity in relation to the arbitration process.

An efficient panel of Arbitrator and professional support: this is one of the major benefits of institutional arbitrator International arbitration institutions usually benefit from vast databases of arbitrators in order to assist parties in appointing appropriate arbitrators for the resolution of their disputes. The institutions have panels of experienced arbitrators specializing in various areas like construction, maritime, contract, trade, commodities, etc. available to them.

Well-built Infrastructure: these institutions have a tremendous work ethic and provide latest infrastructural facilities. They have sophisticated conference halls etc. All the above-mentioned advantages make the complete procedure speedy, risk-free and efficient and swiftly take the dispute resolution process toward better form.

However, besides all the advantages the biggest problems arise due to the superfluous flexibility arise in the ad-hoc arbitration.

Issues with Arbitral Institutions in India

It has been a decade since policymakers had dreamed of making India a hub international commercial arbitration. But still the dream could not be fuelled, there are several reasons for this. The former chief justice of the Supreme Court of the United States of America Warren E. Burger while addressing the American Bar Association said that:

“The entire legal profession has become so mesmerised with the stimulation of the courtroom that we tend to forget that we ought to be healers of conflicts. For many claims, trials by adversarial contests must in time, go the way of the ancient trial by battle and blood. Our system is too costly, too painful, (…). As healers of human conflicts, the obligation of the legal profession is to provide mechanisms that can produce an acceptable result in the shortest possible time, with the shortest possible expense and the minimum of stress on the participants. That is what justice is all about”[22]

The statement was made in the context of litigation and it was felt that there is need for Alternative Dispute Resolution (ADR) in our judicial system. But this current system fits perfectly in today’s arbitration mechanism especially the Ad-hoc arbitration. The dispute resolution has been too costly, too painful and moreover time-consuming. Therefore there was needing felt for institutionalising arbitration in India.

To address the same a High Level Committee was set up by an order dated on January 13^th, 2017 by the Ministry of Law and Justice, Government of India. The committee was chaired by Justice B.N. Srikrishna (Retired judge, Supreme Court of India). The object of the committee was to:[23]

1. To identify issues those are affecting the current arbitration mechanism in India.
2. To create a roadmap for making India a hub for international and domestic arbitrations.

The committee came out with a report on 3^rd August 2017[24] “Report of the High-Level Committee to Review the Institutionalisation of Arbitration Mechanism in India”. The report is divided into three parts, Part I deals with institutional arbitration in India, the current state of institutional arbitration and ad-hoc arbitration and various other aspects relating to the same. Part II deals with the case study of the ICADR and the Committee’s recommendations for its reform. Part III of the Report deals with the role of arbitrations in BIT disputes involving the Union of India.

As per the reports, there is a preference for Ad-hoc arbitrations by Indian parties. But the report suggested that there is a relative advantage of institutional arbitration over ad-hoc arbitration. The same has been discussed in chapter II of this paper in details. It was observed that not only the small disputes but also gigantic commercial disputes were solved through ad-hoc arbitration.

The report said that “India has not fully embraced institutional arbitration as the preferred mode of arbitration despite the existence of several institutions which administer arbitrations.”[25]

Current Situation of Arbitral Institution in India

As per the report there are more than three dozens of arbitral tribunal present in India, like the International Centre for Alternative Dispute Resolution (ICADR), Indian Council of Arbitration (ICA), the Delhi International Arbitration Centre (DAC), and recently added in the list the Mumbai Centre for International Arbitration (MCIA). Some of these institutions have their own set of arbitral rules or administer under United Nations Commission on International Trade Law (UNCITRAL Arbitral Rules).[26]

It is worthwhile to mention that there is an increase in the number of the institution but still the parties are not approaching these institutions at this level. Even the popular institutions like International Chamber of Commerce (ICC) and the SIAC. Recently the LCIA India has even closed its office in India due to insufficient caseload.

Even after having an edge over the ad-hoc form of arbitration in India the parties do not prefer the institutional arbitration. There are certain reasons why these institutions are not gaining popularity among Indian parties. The report suggested that there is need to change the structure these institutions are working in India.

Development of Arbitral Institutions in India

The report by the High-Level Committee discusses in detail regarding the development of the above mentioned Arbitral Institutions and the reasons why these institutions are the most preferred among the parties. Briefly, the reasons are

Efficient Governance: This is probably the major reason why they are most preferred arbitral institutions. All these institutions have modern and updated rules which allow them to offer parties more flexibility. Services like scrutiny of the draft arbitral award and other potential defects make them more preferable. These have experienced panel of arbitrator having international expertise and a well-organized administrative staff. The state of the art infrastructure is available for conducting the whole process.

Adequate Support from the government: The foremost reason given by the committee was that among two of the top five arbitral intuitions namely the SIAC and the HKIAC were immensely supported by their respective governments. The governments provided them adequate financial and infrastructural support as well as playing an important role in promoting them to international level. Maxwell Chambers was also established through the government support. This indeed is a problem in India.

Though, the New Delhi International Arbitration Centre (NDIAC) Bill 2018 which was recently introduced in Lok Sabha [27]is a positive step toward institutionalising arbitration in India. The bill provides for the takeover of the existing International Centre for Alternative Dispute Resolution, also proposes to set up an arbitration chamber.

Significant role Business Community: To fulfil the need of business of community asking for effective resolution services led to the establishment of several arbitral institutions HKIAC and ICC Court both were establish to fulfil the needs of the business community.

Supportive Arbitration Jurisdiction: The popularity of these institutions is due to the supportive legislative system. These jurisdictions such as Singapore, Hong Kong, and London are completely arbitration friendly seats. They have the better business-friendly environment and also provide for better legal services. The local legislative framework provides priority to party autonomy, the efficacy of proceedings, the sanctity of arbitral awards and the provision of ample court assistance in arbitrations.

Less Interference by Judiciary: According to the report all the mentioned arbitral institutions are blessed with a judicial system which is very supportive of arbitration. They not only respect the party’s autonomy but also preserve the sanctity of the arbitral award. Whereas in India too much intervention under the proceeding and erroneous interpretation of provisions of Arbitration and Conciliation Act has made it more difficult to arbitrate.

All these reasons were observed by the committee. Nevertheless, some of the feature even the Indian government is trying to adopt and make India an International hub for arbitration. This chapter answers the second question that what are the reasons why institutional arbitration is not preferred in India. The working of the top Arbitral institutions gives a fair idea as to what steps can be taken to improve the current situation to make India an arbitration-friendly jurisdiction.

Key recommendation and suggestion by Srikrishna Committee

After all the observation made by the committee, the reasons were identified regarding the unpopularity of institutional arbitration in India. On the above mentioned reasons in the above-mentioned chapters, the committee proposed some recommendation to improve the overall governance of arbitral institution and what can be done to boost institutional arbitration in India.

To increase the quality and performance of arbitral institutions and to solve the problems in their working following recommendations are made:

Establishment of Statutory Autonomous body: Arbitration Promotion Council of India (APCI) should be established at national level. This autonomous body would comprise of the representatives from the government, legal community, and arbitral institutions. The members of the body shall have substantial expertise in arbitration. The main function would be grade the arbitral institutions as per the grading policy, to make recommendations regarding the governance of institutions, conduct researches etc. and would always make an effort for promoting Institutional Arbitration in India. On the grade given by APCI, the High Courts and Supreme Courts may be encouraged to designate arbitral institutions as authorities for appointing arbitrators.

suggests that there is a need for accreditation of arbitrator as this is one of the major issues faced by the arbitral institutions. A group of the qualified and experienced arbitrator will change the entire perception regarding the institutions. In order to be chosen as a member of the arbitral institution, the professional would require adequate education, substantial experience as an arbitrator and professional and moral standing. The selection can be done with the help of interviews, qualifying examinations, professional education from reputed institutes etc. can be taken into consideration. No separate body will be created APCI would administer it.

Establishment of a specialist bar: For speedy and efficient governance of arbitration preceding the Committee is of the opinion that there should be an establishment of a specialist arbitration bar and arbitration benches in India. The arbitration bar would comprise of a young and trained pool of arbitrators who has substantial expertise in arbitration and accredited by the APCI.

Establishment of a specialist bench: The specialist arbitration benches, on the other hand, would deal with arbitration disputes such as the challenge of an award under section 34 of the Arbitration and Conciliation Act and resolve the uncertainty. Judges of Commercial courts will also be forming part of this bench and would be provided with periodic refresher courses on recent developments in arbitration. This would help to reform arbitration by having lawyers and well-informed judges who can promote best practices of international arbitration in India.

Creation of Standing Committee: To ensure that the Indian arbitration laws and practice are in line with the recent development, a standing committee can be constituted under the authority of APCI. The function of the committee varies from reviewing to government’s policy on arbitration to promoting institutional arbitration. It would also be regularly monitoring the provisions of Arbitration and Conciliation Act.

Enhanced Role of Government: The government’s role would be to actively encourage institutional arbitration and provide infrastructural support. The government may facilitate institutional arbitration by helping build a physical infrastructure and also take steps to build integrated infrastructure such Maxwell Chambers.

Promote Mediation as a viable ADR mechanism: According to the committee, there is need to create a difference between ADR mechanism and litigations. Other forms of dispute resolution are also equally important. The committee stressed on the promotion of mediation, as there is a boost in the use of meditation as a form of dispute resolution. There has been a considerable progress in the conduct of mediation. The “Med-Arb” combination is also praised for being more efficient and has greater party autonomy than mediation and arbitration separately. It is suggested that all the arbitral institutions should also provide for mediation services through a cell. APCI has been authorised to set standards to enroll the mediators.

Thus, these are the recommendations given by the committee in brief and this proves that if all these recommendations are fulfilled then surely in coming years India can be a hub for international arbitration and mediation.

Conclusion

High-Level Committee to review and reform the institutionalisation of arbitration, SAIC’s tie-up with Gujarat International Finance Tec-city, discussions about BRICS-Centric Arbitration Centre shows that we are moving to the right direction.

In order to make India a global hub for International arbitration and mediation there is a need to face-lift and revamp the entire structure of arbitral institutions. The issues faced by the institutions can be resolved through the recommendations of the committee. There is an urgent need to understand that there is a difference between ADR and Litigation. ADR specifically Arbitration and Mediation are the unsurpassed forms of dispute resolutions.

However, this can be only done with the support from the entire stakeholders in the process. The business community should start understanding the potential of Institutional arbitration and indulge in resolving the dispute in an efficient manner. Secondly, it is the responsibility of state to create an arbitration friendly environment by supporting these institutions by providing required financial and infrastructural support. Legislative and the judiciary need to work together and bring out a policy which would support party autonomy rather than imposing mandatory rule.

It is equally important to ensure that the institutional arbitration in India is speedier and more cost-effective. To achieve a continuous effort would be required by the arbitral institutions and gain the confidence of parties to move towards mitigation instead of litigation. This can be achieved by providing state of the art facilities, experienced arbitrators, and effective administrative body and well-designed framework. Therefore, if we “Evolve” as arbitration friendly eco-system, “Devolve” all the lacunas only then we can “Resolve” the disputes efficiently.

India is a country with great potential it has got the best possible opportunity to achieve this goal and emerge as the most effective arbitral seat in the globe.

References

[1] OECD Economic Surveys: India. (Feb. 9, 2018), http://www.oecd.org/eco/surveys/economic-survey-india.htm

[2] Report of the High Level Committee to Review the Institutionalisation of Arbitration Mechanism in India (2017) p. 3. (Further The Report)

[3] Ease of Doing of Business The World Bank Doing BUSINESS (Feb.  9, 2018 ) http://www.doingbusiness. org/data/exploreeconomies/india.

[4] Id.

[5] National Juridical Data Grid ( Feb. 10, 2017 ), http://njdg.ecourts.gov.in/njdg_public/main.php

[6] Supra Note 3.

[7] Indian Council of Arbitration, (Feb. 10, 2018), http://www.icaindia.co.in/icanet/rules/commercial arbitration/arbitration conciliation/chapter1a.htm.

[8]  Bibek Debroy and Suparna Jain  Strengthening Arbitration and its Enforcement in India – Resolve in India (2016).

[9] Mridul Godha, Kartikey M. The New-Found Emphasis on Institutional Arbitration in India, Kluwer Arbitration Blog.(Feb. 12, 2018) ,http://arbitrationblog.kluwerarbitration.com/2018/01/07/uncitral-technical-notes-online-dispute-resolution-paper-tiger-game-changer/?print=print.

[10] Brics dispute resolution mechanism: Challenges ahead, but promises much Financial Express, Oct. 25, 2016, (Feb. 12 , 2018) http://www.financialexpress.com/opinion/brics-dispute-resolution-mechanism-challenges-ahead-but-promises-much/428845/

[11] Press Information Bureau Press Release, ‘Constitution of high level committee to review Institutionalization of Arbitration Mechanism in India’, Dec. 29, 2016, (Feb. 9, 2018) http://pib.nic.in/newsite/PrintRelease .aspx?relid=155959.

[12] Edlira Aliaj, Dispute resolution through ad hoc and institutional arbitration, 2, Academic Journal of Business, Administration, Law and Social Sciences (2016), (Feb. 17, 2018) http://iipccl.org/wp-content/uploads/2016/07/241-250.pdf.

[13] Id.

[14] Lord Mustill, Comments and Conclusions in Conservatory Provisional Measures in International Arbitration, 9th Joint Colloquium ICC Publication (1993).

[15] Sundra Rajoo Institutional and Ad hoc Arbitrations: Advantages and Disadvantages, The Law Review (2010).

[16] Aksen, G. Ad Hoc versus Institutional Arbitration, The ICC International Court of Arbitration Bulletin (Feb. 17, 2018) https://scholar.google.com/scholar.

[17] Blanke, G. 9 275 Institutional versus Ad Hoc Arbitration: A European Perspective 275 ERA Forum. (2008), (Feb. 17, 2018) https://doi.org/10.1007/s12027-008-0055-6

[18] Ad Hoc v International Arbitration Charles Russell Speechlys (Feb 17, 2018), https://www .charlesrussellspeechlys.com/en/news-and-insights/insights/real-estate/2013/ad-hoc-v-international-arbitration/

[19] Nandan Bio matrix Ltd. V D 1 Oils Ltd, (2009) 4 SCC 495.

[20] Supra Note, 12.

[21] The Report page. 15.

[22] Burger The State of Justice 70 ABAJ (1984), (Feb. 19, 2018) http://www.nytimes.com/1984/02/13/us/burger-says-lawyers-make-legal-help-too-costly.html.

[23]The Report page 8.

[24]The Report page 15.

[25]The Report page 13 para  2.

[26] Id.

[27] PRS Legislative Research, (Feb. 9, 2018) http://www.prsindia.org/billtrack/the-new-delhi-international-arbitration-centre-bill-2018-5036/.

The post Promoting Institutional ADR to make India a hub of arbitration appeared first on iPleaders.

In this article, Nawlendu Bhushan of Campus Law Centre discusses whether RERA bars the original jurisdiction of NCDRC or not.

Introduction

In order to ensure accountability towards allottees and protect their interest as well as infuse transparency, ensure fair play and reduce delays the Government has passed the Real Estate (Regulation and Development) Act, 2016 (hereinafter “the Act”). A common issue faced by the homebuyers after passing of the new real estate law is regarding the place where they have to approach for getting their grievances settled. Either the Consumer Forum or the Real Estate Tribunal. The article clears the doubt.

Aggrieved homebuyers and RERA

Section 31 of the Act states that any aggrieved person may file a complaint with the Authority for any violation or contravention of the provisions of this Act or the rules and regulations made thereunder against any promoter allottee or real estate agent. It explains that the word “person” includes an association of allottees and any voluntary consumer association.

In case of any structural defect or defect in quality or provision for services as per agreement for sale, the allottees are entitled to get it rectified by the promoter within thirty days of the complaint. Allottees can bring such complaints within five years from the date of possession. In case the promoter fails to rectify the defects, allottees can claim compensation by filing a complaint to the RERA.  

So, an aggrieved homebuyer or allottee may file a complaint against any promoter or real estate agent in case they violate their obligations fixed by the Act.

The Real Estate Appellate Tribunal

Any person or the Appropriate Government aggrieved by any direction or decision or order made by the Authority or by an adjudicating officer under this Act may prefer an appeal before the Real Estate Appellate Tribunal. Such tribunals are to be established by the Appropriate Governments. The appeal can be made within a period of 60 days from passing of the direction or decision or order.

The tribunal is guided by the principles of natural justice. Orders made by the Appellate Tribunal are executable as a decree of a Civil Court.

Appeal against decision or order of the tribunal lies in the High Court.

NCDRC and its jurisdiction in case of foul play by promoters

The National Consumer Dispute Resolution Commission (NCDRC)  is established under the Consumer Protection Act, 1986. Apart from having an appellate jurisdiction against the orders of any State Commission, the NCDRC has original jurisdiction in entertaining complaints where the value of goods or services or compensation exceeds INR 1 crore.

The Supreme Court and NCDRC have already made it clear that a group of consumers having a common interest or common grievance and seeking a similar relief against the same person can come together without forming any association to file a case in NCDRC with a claim of INR 1 crore or more. Consumers can approach the district forum if their claim is not above INR 20 lakh and the state commission if their claim is in the range of INR 20 lakh to INR 1 crore.[1]

Does RERA bar the original jurisdiction of NCDRC?

An aggrieved person has two options to seek redressal for his grievances one to approach the RERA and the other to approach appropriate consumer forum. In case, the individual claim is less than INR 1 crore, the homebuyer can bring his claim to the NCDRC along with other homebuyers seeking similar relief from the same person if the aggregate claim exceeds INR 1 crore. But, only upcoming and ongoing projects fall within the ambit of the RERA. For existing projects where completion certificate has been granted only appropriate consumer forum has jurisdiction.

Most of the States’ legislations related to the RERA has an express clause that for filing a complaint to the RERA, the complainant has to ensure that no other complaint is pending in any other court or Authority. This restricts the options for aggrieved homebuyers as well as reduces the chance of multiple litigations on the same cause.

To appreciate which is a better forum, RERA or NCDRC, let’s compare the power, process and efficiency of these two.[2]

Conclusion

From the above comparison, it is clear that an aggrieved allottee of a project, where completion certificate has been granted, can approach the NCDRC or appropriate consumer forum only. Aggrieved allottees of an ongoing or upcoming project have both the options available. The provisions in the State enactments, which put a condition on the filing of a complaint that no complaint should be pending, make it clear that the aggrieved can choose only one recourse. In this way, the Act does not bar the original jurisdiction of the NCDRC but ensures minimum litigation on the same matter. Considering past records of the consumer courts and faster finality of NCDRC order (only one stage of appeal) against the backdrop of the real estate specific jurisdiction of the RERA, stricter penal provisions in the Act, it can be inferred that choosing either of the two depends upon the future course of litigations in the RERA.

References

[1]http://www.moneycontrol.com/news/business/real-estate/ncdrc-restricts-complaints-to-rwas-here-are-the-legal-options-for-homebuyers-2274327.html (Date of visit 20/02/2018, time of visit 12:35 IST)

[2]https://housing.com/news/rera-versus-ncdrc-will-protect-home-buyers-better/(Date of visit 20/02/2018, time of visit 12:35 IST)

The post Does RERA bar the original jurisdiction of NCDRC? appeared first on iPleaders.

The article is written by Aditya Srivastava, marketing executive at iPleaders.

The other day, I posted a question on facebook asking people to define success. Someone said it’s happiness. Another commented winning is success. Some said being the best at what you do is success. All these answers didn’t sound very convincing to me. I was looking for something more comforting, something relatable.

When I was a young kid, I could never play cricket. I still can’t. I just can’t coordinate the bat with the ball. I was ridiculed and mocked plenty of times for not being able to play the so-called national game. I confess I did cry over it a few times.

My mother saw me crying and asked me,

“What is winning in cricket?”

“Scoring more than the other team?” I answered.

“Correct! How do you ensure that you are scoring more than the other team?”

“By making more runs? Duh, mom!”

“Don’t you duh me. How do you make more runs?”

“By hitting the ball with the bat or by running between the wickets.” I was almost getting annoyed now.

“Exactly. So, why don’t you consider everytime you hit the bat as victory? You can have multiple wins you see. And you will know that you are definitely winning as well.”

Success is a very subjective term. Let’s take an example. While you were at the law school, probably scoring the highest grade was success. Maybe winning a moot, debate or getting a research paper published was success. As we graduated, getting a good job was success. Performing well at our job could be success too. Success could practically be anything. The bigger question is, how do you define success?

Imagine, how beautiful it would be to live like winning whenever you are playing. You could win multiple times and probably fail multiple times too. However, isn’t the very thought of winning ticklish? Who do you think could be a winner? Someone who takes a risk and performs or someone who doesn’t take a risk and still performs?

A friend of mine was not getting a job for a very long time. She happened to be extremely laid-back. She wanted results without putting in any effort. This was constant while she was job hunting. No effort and lack of knowledge was getting her no interviews. The ones she managed to get, she performed horribly in them. She was very disheartened for not being able to get through anywhere.  Although she wanted to be a corporate lawyer, she started considering litigation owing to her frustration.

I recommended her to start working on building her knowledge. I asked her to first take up a course on corporate law and give her 100% to it. If she managed to complete this course, she should consider herself successful. She took up the course. It was a pleasant change to see her work hard for something. Today, she is working at one of the best firms in the country. For her, her success meant that she could get herself to work hard to be where she is today.

Define Success for Yourself!

If you look at India’s history, many started by defining goals for themselves. Gandhi brought in a whole revolution by just picking up a pinch of salt. If an action as small as picking up salt from the seabed could change the history of an entire nation, imagine what setting up a goal for yourself could do.

Defining success may not be difficult. I meet a lot of people around me who are frustrated or fed up with their jobs. It is primarily because they don’t feel the sense of accomplishment. A very dear friend recently quit his job because he thought he was not up to the mark. The first step towards success is to take a step back. Analyse the circumstances, your situation. Stop being too harsh on yourself. It takes a lot to start believing in yourself. Once you learn to do that, success would be following you.

Barack Obama once said, “The real test is not whether you avoid this failure, because you won’t. It’s whether you let it harden or shame you into inaction, or whether you learn from it; whether you choose to persevere.” If you have ever read Rich Dad Poor Dad by Robert Kiyosaki, it gives a very simple mantra – The most successful people are the most rejected people in the world. If you have read about Abraham Lincoln, you will realize he failed a number of times before he became the President of the United States of America.

Success is overcoming this failure. It is accepting ourselves for who we are and learning from it to not repeat it ever again. If you are a practicing lawyer, chances are you might not be able to win a single case for the few years. Giving it your best shot is what defines you. If you learn from the mistakes, you won’t repeat them again. I had a chapter in my moral science class in primary school titled ‘Try Try Try Till You Succeed’, and I now understand the relevance of it.

What are you doing to succeed?

Just defining success or setting a goal for yourself is not enough. Your success is what you do to achieve that goal. It is striving towards that goal. Gandhi said, “means are more important than ends.” You need to start by introspecting, “Are you doing enough to achieve your goal?”

The thought of “what will make you succeed” should push you forward. Visualize it, think it through and live it. The road to success and failure is the same. Possibilities are that your plan might not work, but having a plan and acting upon it is success. The fear of failing won’t take over if you start believing that you have nothing to lose. Would you leave your toxic law firm job that gives you no time for yourself and move to a startup for a better quality of life? Maybe, maybe not. It’s a risk. The question is are you willing to take it?

Once you take risks, you will start learning on the go. When I was in college, I was restricted to what I thought was good for my CV. I was debating, writing research papers, maintaining a good CGPA. Was I content? No.

I decided that my success would be how much I can perfect my knowledge in the area of law I want to make my career. I took a risk of taking up an online course in order to gain domain knowledge. You can read about my journey of taking up an online course in my article titled: ‘Are Online Courses Worth It?’ After working hard for a year on the course, I realized that I have learnt what law school never taught me. I got an offer from a top-notch law firm and an MNC. Was taking the risk worth it? Yes, I believe it paid off.

This pushed me to take more risks in life, to believe in myself and to follow my passion. I quit my job at an MNC and joined the same company which made the course to pursue my passion for writing. Today, as I write for the entire legal community, and readers like you, I realize that the art of writing is also a giving of the very same course. That one risk of giving myself a year of virtual training has brought me closer to my passion.

After struggling through law school, feeling discontent with what I was doing for years, I now feel powerful, fearless, and most importantly prepared. I feel successful; and so can you.

The post How Would You Define Success? appeared first on iPleaders.

In this article, Kanti, a student of the University of Delhi, talks about the judicial stand taken on the issue of rape and gang rape and how is the punishment decided for the same.

Should the offenders of heinous crimes like rape and gang rape be given the capital punishment or not is a widely debated issue.

Developing countries like India do not have a deterrent punishment for such heinous crimes.

Additional sessions judge Kamini Lau had on May 11, 2011, suggested “chemical castration” as an alternative to a jail term for rapists.

Is there any difference between laws relating to Rape and Gang Rape?

The offence of rape and gang rape are punishable under the Indian Penal Code and separate punishment has been provided for them. A gang rape is committed by more than one person on a woman while a rape is committed by one man. The punishment provided for the offences are as follows:

Section 376 of the IPC states that if the rape is committed by persons listed below, they shall be punished with rigorous punishment of not less than 10 years, but can extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.

• Police officer within the limits of the police station.
• A police officer in the premises of any station house.
• A police officer on a woman in the police officer’s custody.
• Public servant on a woman’s in his custody.
• Member of the armed forces.
• Any person in the management of the jail, remand home etc. on inmate of such place.
• Staff/management of the of a hospital on a woman in that hospital.
• By a person who is in a position trust or authority or control or dominance towards a woman on such woman.
• During communal or sectarian violence.
• On a pregnant woman
• On a woman less than 16 yrs of age
• On a woman incapable of giving consent
• On a mentally or physically disabled woman
• Who causes grievous bodily harms or endangers the life of a woman.
• Who commits rape repeatedly on the same woman.

If any other person commits rape on any woman, he shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine.

Section 376A says if a person commits an offence which is punishable under section 376 which causes the death of the women or causes the women to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than 20 years, but may extend to imprisonment for life or with death.

Gang Rape

Section 376D prescribes punishment for gang rape and says where a woman is raped by a group of persons, then they shall be punishable with rigorous punishment of not less than 20 years, but may extend to life imprisonment, and with fine.

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this section shall be paid to the victim.

Let’s have a look at how far the judiciary has gone to interpret the various legislation related to rape and laid down landmark judgments where no law was prescribed.

Judicial stand on rape prior to 2000

Judiciary has played an important role in protecting the rights of the women and have tried to interpret laws in consonance with international treaties and Conventions.

Till 2002, the judiciary was not so proactive in convicting the rapists and the sexual history of the women was the primary factor considered while the verdict was given. The same was reflected when the Hon’ble Supreme Court acquitted the accused based upon the sexual history of the victim in the Mathura Case. The court presumed that the victim gave her consent because she was habitual of the sexual intercourse and the vagina of the admit could admit two-fingers very easily.

But due to widespread protests and open letter to the Supreme Court by some intellectuals, led to an amendment in the Criminal Act. This amendment said that if a victim says that she did not give the consent, then the Court shall assume the same.

How is the quantum of punishment is decided in rape cases?

• For Rape Cases
• For Gang Rape Cases

RAPE CASES

Capital Punishment in Rape Cases:

Rameshbhai Chandubhai Rathod vs State Of Gujarat[1]

In the instant case, the victim who had not seen even ten summers in her life is the victim of sexual assault and animal lust of the accused appellant. She was not only raped but was murdered by the accused appellant.

Imposition of the sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.

The plea that in a case of circumstantial evidence death should not be awarded is without any logic. If the circumstantial evidence is found to be of an unimpeachable character in establishing the guilt of the accused, that forms the foundation for conviction. That has nothing to do with the question of sentence as has been observed by this Court in various cases while awarding death sentence. The mitigating circumstances and the aggravating circumstances have to be balanced.The plea of learned counsel for the appellant that the conviction is based on circumstantial evidence and, therefore, the death sentence should not be awarded is clearly unsustainable.

The case at hand falls in the rarest of rare category. The circumstances highlighted establish the depraved acts of the accused and they call for only one sentence i.e. death sentence.

As dealing with sentencing, courts have thus applied the “Crime Test”, “Criminal Test” and the “Rarest of the Rare Test”, the tests examine whether the society abhors such crimes and whether such crimes shock the conscience of the society and attract intense and extreme indignation of the community. Courts have further held that where the victims are helpless women, children or old persons and the accused displayed depraved mentality, committing crime in a diabolic manner, the accused should be shown no remorse and death penalty should be awarded.

Dhananjay Chatterjee Alias Dhana vs State Of West Bengal [2]

A security guard raped and murdered a school girl in Kolkata in 1990 in retaliation for his transfer on her complaint made earlier. The apex court while awarding the death sentence to the accused observed that the state in which the body of the deceased was found, it is obvious that a most heinous, cold blooded, inhuman type of barbaric rape and murder was committed on a helpless girl.

In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the criminals.

“Justice demands that courts should impose punishment fitting to the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering the imposition of appropriate punishment.”

Bantu vs State of Uttar Pradesh [3]

The victim aged about five years was not only raped but was murdered in a diabolic manner. The Court awarded extreme punishment of death, holding that for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed must be delicately balanced by the Court in a dispassionate manner.

Life imprisonment in Rape Cases:

State vs Deepak Dogra,2013 [4]

The boy established the sexual relations with the victim on the false pretext that he will marry her later. He performed an invalid marriage when the girl complained of him to the police when he refused to marry her and she was pregnant with his child.

In the present case, the act of the convict is most deplorable, both legally and morally. It is time for the realization that certain category of sexually depraved behaviour is totally unacceptable in the Indian Socio- Legal System which seeks to protect the chastity the first virtue of a woman and such behaviour can prove to be costly as has happened in the present case.

Keeping in view the ghastly and inhuman act of the convict, a substantive and stern sentence is required to be imposed upon the convict so that it is not only in commensuration with the gravity of the crime but also serves as an example for the others who might also venture on the same forbidden path. The convict does not deserve any leniency.

The Court can not and should not give such a licence to those who keep on looking for opportunities to exploit the sentiments and vulnerability of Indian girls who perceive marriage as a pious bonding and not as a union of two bodies. Allowing such persons to go scott free after exploiting poor and helpless girls in this manner could not have been the intention of the legislature which considered rape to be such heinous as to attract imprisonment up to life.
In view of the above discussion, the conviction imposed on the appellant herein is confirmed. However, the sentence of life imprisonment is modified to RI for 10 years with a fine of Rs 1000, in default, to further undergo RI for one month.

Punishment for more than 10 years but less than life imprisonment in Rape Cases:

Santosh vs State Of Uttar Pradesh[5]

The accused committed rape on a girl belonging to scheduled caste. The accused was awarded life imprisonment. An appeal was filed for the same in the apex court. The accused was 25 years of age at the time of the incident and the only bread earner of the family. It was his first guilt and hailed from a very poor family.

The apex court considered all the above factors and reduced the sentence to 12 years. The court said that in such case the appropriate sentence cannot be more than 12 years.

Punishment for less than 10 years in rape Cases:

The State Of Punjab vs Gurmit Singh & Ors[6]

A 10th class student was abducted and raped by four young men aged 21-24 years. The accused were acquitted by the trial court and appeal was filed against the same. The apex court while reversing the judgment said that as far as the sentence is concerned, athe court has to strike a balance. In this case, the occurrence took place more than 11 years ago. The respondents were aged between 21-24 years of age when the offence was committed. We are informed that the respondents have not been involved in any other offence after they were acquitted by the trial court, more than a decade ago. All the respondents, as well as the prosecutrix, must have married and settled down in life. These are some of the factors which we need to take into consideration while imposing an appropriate sentence on the respondents.

In this case, we have, while convicting the respondents, imposed, for reasons already set out above, the sentence of 5 years R.I. with fine of Rs. 5000/- and in default of payment of fine further R.I. for one year on each of the respondents for the offence under Section 376 IPC. Therefore, we do not, in the instant case, for those very reasons, consider it desirable to award any compensation, in addition to the fine already imposed, particularly as no scheme also appears to have been drawn up as yet.

State Of Maharashtra vs Chandraprakash Kewal Chand Jain[7]

A girl who was newly married was raped by one policeman twice while his husband was kept separate from her. He not only raped her but also threatened her that if she opens her mouth, then he will burn her and her husband alive. Trial court-sentenced the respondent to suffer rigorous imprisonment for 5 years and to pay a fine of Rs.1,000, in default to suffer rigorous imprisonment for 6 months.

On the question of sentence we can only say that when a person in uniform commits such a serious crime of rape on a young girl in her late teens, there is no room for sympathy or pity. The punishment must in such cases be exemplary. We, therefore, do not think we would be justified in reducing the sentence awarded by the trial court which is not harsh.

Om Prakash vs State of Uttar Pradesh[8]

The victim was in court because her husband was facing challan proceedings. She was 6 months pregnant. The accused came to attend the same and tried to rape her when he found her alone in the Zila Parishad. Although no evidence of rape was found, the accused was given a seven years sentence only on the basis of the statement of the victim and eyewitnesses.

The trial court had awarded 10 years punishment to the accused considering that there was “full possibility” that the accused was aware of her pregnancy. But the apex court reduced the punishment to 7 years because no evidence was brought to the court that the accused actually had the knowledge about her pregnancy.

GANG RAPE CASES

Capital Punishment in cases of Gang Rape

Shakti Mills Rape Case

A 22-year old photojournalist was brutally raped by 5 men including a minor when she was clicking pictures of a worn out mill called Shakti Mills in Mumbai. Awarding death penalty to the three, the court said,

If this is not the case where death sentence prescribed by law is not valid, which is?” the judge asked.

I am constrained to hold that the mitigating circumstances like young age of accused, their socio-economic conditions and non-existing chances of their reformation, pale into insignificance in the light of the aggravating circumstances. Hence this case, without any doubts, falls into the category of the “rarest of rare.” Therefore, if the object of punishment is to be achieved, then here in the case, only maximum punishment will send the message to the society and also to similar like minded persons. To show leniency or mercy in the case of such heinous crime and on the accused who have shown no repentance or remorse after exhibiting extreme depraved mentality would be a travesty of justice. This Court cannot do so.

The Nirbhaya Case (2012)[9]

This case hardly requires any facts to be stated as it is still fresh in the consciousness of the nation. A paramedical student was tortured by six men to such an extent that an iron rod was shoved into her vagina and her intestines, abdomen, and genitals were damaged severely. They threw her out of the bus in the wintery night.

One of the accused was juvenile and was sent to a reform facility for three years. One of the accused committed suicide in the jail and rest were given the death penalty.

The court observed that “Question of awarding sentence is a matter of discretion and has to be exercised on consideration of circumstances aggravating or mitigating in the individual cases… protection of society and deterring the criminal is the avowed object of law…while determining sentence in heinous crimes, Judges ought to weigh its impact on the society and impose adequate sentence considering the collective conscience or society’s cry for justice. While considering the imposition of appropriate punishment, courts should not only keep in view the rights of the criminal but also the rights of the victim and the society at large.”

Life imprisonment in Gang Rape Cases:

Mohan Lal & Anr vs State Of Punjab[10]

A student was forcibly raped by her teachers including the Director of Education of Punjab state. The trial court imposed 10 years of imprisonment on the accused and fine of Rs.2000/- and Rs. 3,000/- respectively, and in default of payment of fine, to undergo further rigorous imprisonment for one year and six months respectively. But an appeal was filed by the accused. The Supreme Court while agreeing with the trial court stated that so far as the conviction is concerned, as it was a case of gang rape by teachers of their student, the punishment of 10 years rigorous imprisonment imposed by the trial court is shocking, considering the relationship between the parties. It was a fit case where life imprisonment could have been awarded to all the accused persons.

Punishment for less than 20 years in Gang Rape Cases:

Baldev Singh & Ors vs State Of Punjab[11]

The prosecutrix was gang raped and beaten by the accused when she was going to her house. All the three appellants were convicted and sentenced to 10 years rigorous imprisonment. The High Court upheld the sentence. The appellants had already gone for 2 years imprisonment. The accused and prosecutrix and the appellant are married( (not to each other) and the prosecutrix has two children also. The incident is now 14 years old and it was stated before the court that both the parties have entered into a compromise. Therefore, the accused should be acquitted. The apex took all the above listed factors into consideration and reduced the sentence of the accused to that much which the accused had already undergone.

In this case, the sentence awarded by the court was less than the punishment prescribed in the statute.  

Shimbhu & Anr v. State Of Haryana[12]

The victim in this present case was gang raped by the accused. The Additional Sessions Judge convicted the accused and awarded them 10 years rigorous imprisonment. The High Court upholded the same. The accused filed an appeal and the learned counsel on behalf of the appellant contended that the accused should be awarded lesser punishment as there has been a compromise between the parties.

But the court rejected these contentions and held that rape is a non-compoundable offence and cannot be considered a leading factor in reducing the punishment. Because there might be a possibility that the victim has been pressurized for the compromise.

By the Criminal Law Amendment, 2013, the proviso which said that in exceptional circumstances, the punishment may be reduced, has been deleted in the wake of the rising of crimes against women. Though this deletion does not affect the discretionary powers given to the judiciary.

The court has warned the subordinate courts and the High courts again and again in the words:

This is yet another opportunity to inform the subordinate Courts and the High Courts that despite stringent provisions for rape under Section 376 IPC, many Courts in the past have taken a softer view while awarding sentence for such a heinous crime. This Court has in the past noticed that few subordinate and High Courts have reduced the sentence of the accused to the period already undergone to suffice as the punishment, by taking aid of the proviso to Section 376(2) IPC. The above trend exhibits stark insensitivity to the need for proportionate punishments to be imposed in such cases.

Acquittal of the accused due to lack of evidence:

Mahmood Farooqui vs State (Govt Of NCT Of Delhi)[13]

The victim alleged that she was forcefully gang raped by the accused in the veranda of a community hall. But no semen was found on the clothes of any of the accused. The community hall where the rape has been alleged to be committed is a crowded place and also the time when rape is alleged to be committed was during Ganpati festival.

The court disbelieved the story of the prosecution because in the circumstances as stated by the prosecutrix, it was difficult to believe that the appellant accused could have been successful in committing upon the victim girl one after the other. The accused appellant were acquitted under section 376 but convicted under section 511 of the IPC.

Can A Woman Be Charged For Gang Rape?

The rationale given by the High court in Priya Patel vs State of M.P.[14] was that though a woman could not commit rape but if a woman facilitated the act of rape, she could be prosecuted for gang rape. The High Court was of the view that though a woman may not commit rape, but if a woman facilitates the act of rape, Explanation-I to Section 376(2) comes into operation and she may be prosecuted for gang rape. The rule is based on the principle of common intention as provided in section 34 of the IPC.

The apex court in the same case in appeal held that, after a reading of Section 375 of the IPC, rape may be committed only by man. The explanation to Section 376 (2) merely indicates that when one or more persons act in furtherance of their common intention to rape a woman, each person of the group must be deemed to have committed gang rape. The person included both men and women.

To read more, click HERE.

REFERENCES:

[1](2011) 2 SCC 764

[2](1994) 2 SCC 220

[3](2008) 11 SCC 113

[4]https://indiankanoon.org/doc/5078923/

[5]1996 SCC (2) 45, JT 1995 (9) 530

[6]1996 AIR 1393, 1996 SCC (2) 384

[7]1990 AIR 658, 1990 SCR (1) 115

[8](crl.) 629 of 2006

[9]http://www.thehindu.com/news/national/article18390998.ece/binary/SupremeCourtverdict

[10]https://indiankanoon.org/doc/142524125/

[11](2011) 13 SCC 705

[12](2014) 13 SCC 318

[13]https://indiankanoon.org/doc/160377045/

[14]AIR 2006 SC 2639

The post Judicial Stand on rape and gang rape – How the quantum of punishment is decided appeared first on iPleaders.

In this Article Sudarshna Thapa of Law College Dehradun, Uttaranchal University gives an overview of the Prasar Bharati Act.

Introduction

Media is a mediator of information between the citizens and the State. It is the fourth-pillar of our democracy which has a responsibility in shaping the public opinion. A vibrant and a free media is to be necessary for a healthy democracy. As media has the nature of questioning and criticism, so it has a vital role in the whole countries. This means that, for any country which has aspired to democratic norms of governance, should have a free and fair press.

A step towards liberalizing Media

Prasar Bharati is India’s largest public broadcasting agency. It consists of Doordarshan television network and All India Radio. Earlier, both were media units of the Ministry Of Information and Technology. During the emergency time as well as other times, Doordarshan was used for government propaganda. Thus, the Prasar Bharati Act, 1990 was established. The main motive of the Act is to provide freedom to electronic media i.e. the All India Radio and Doordarshan.

History of Prasar Bharati Act, 1990

After 50 years of Independence, in the year 1997 was a year in which measures to free the broadcast media from the control of Government has taken. It was the first time where revolutionary changes are bringing in the field.

Doordarshan and All India Radio

Doordarshan was founded in 1959. Its motto is “Satyam Shivam Sundaram”. In 1960, the terrestrial broadcast was started in Delhi and it was extended to metropolitan cities. Doordarshan was started as a part of All India Radio until it was separated from it in 1976.

All India Radio is the largest radio network in the world. It is a National Public Radio Broadcaster in India which was launched on 1st March 1930. It is officially known as Akashvani with its motto “Bahujana Hitaya Bahujana Sukhaya”.

Both played the role of National and Public Service Broadcaster and served as the voice of the Government and the people. For true Public Service and National Broadcaster, it was decided by the Hon’ble President to convert it into Prasar Bharati.

Grievance Redressal Mechanism

AIR (Prasar Bharati) works at three levels:

1. Concerned Station Level
2. Zonal Headquarter Level
3. Central Headquarter Level

The citizens can approach any concerned officer at any of the three level from the following:

• Information Facilitation Counter (IFC): It may be approached for getting the information and necessary help as per the matter. The grievance redressal system is approached to Director of Public Grievance at central level or Grievance officer at local station/office level.
• Major/Policy/ Planning issues: These are at central level and anyone can contact or send grievance or complaint to the Director General, Akashvani Bhavan, Parliament Street.[2]
• Contact for particular grievance matters:

Any specific grievance matter of the central level can be redressed by approaching any of the following officers at the O/o DG: AIR, Akashvani Bhavan, New Delhi.

For an particular grievance matter one may contact below:

1. Programme: Addl. Director General (Programme Planning and Development),

Directorate General, All India Radio, Room No.106, Akashvani Bhavan, Parliament Street, New Delhi-110 001. Tele : 011-23421391,Fax : 011-23421632, Email: ddgppd@air.org.in

1. Engineering: Addl. Director General Engineering (Development), Directorate General:All India Radio, Room No.107, Akashvani Bhavan, Parliament Street, New Delhi-110001. Tele : 011-23421464, Fax : 011-23421967, E-mail: ced@air.org.in
2. News: Addl. Director General (News), News Services Division, Room No.211, NBH, All India Radio, Parliament Street, New Delhi-110001. TeleFAX : 011-23421209, Email: adgnews2.nsd@nic.in
3. Administration: Dy. Director General (Admin.), Room No. 146, 1st Floor, Akashvani Bhavan, Parliament Street, New Delhi-110001. Tele : 011-23421110, Fax : 011-23421110.
4. Civil Construction Wing (Civil and Electrical Works): Addl. Director General Engineering / Chief Engineer (Civil), Civil Construction Wing, Soochna Bhawan, Lodhi Road, New Delhi-110003. Tele :011-24367360, Fax : 011-24367360,E-mail:ce_ccwair@rediffmail.com

Time Frame

• Issue of interim reply to the petitioner: 1-2 week
• Issuance of formal reply to the petitioner: 4-8 weeks
• Forwarding of petition to the concerned authority: 2 weeks
• Referred cases will be disposed finally by the concerned Ministry/ Department/ State and time limit for informing the position of the outcome: 3 months
• ‘Sexual Harassment of Women at workplace’ cases will be referred to the Complaint Committee: 3 months
• Grievance Redressal: within 3 months, and other issues: As per usual time frame.

Prasar Bharati (Broadcasting Corporation of India) Act, 1990

This Act extends to the whole of India. The Act provides for the establishment of a Broadcasting Corporation. The Act defines composition, powers and functions of the corporation. It grants autonomy to the All India Radio and Doordarshan which were previously under the control of the government. Section 3 of the Act deals with the establishment and composition of the corporation. The corporation is a body corporate having perpetual succession and a common seal with the headquarters in New Delhi.

Structure of the Prasar Bharati Board

The Act specifies General Superintendence, direction and management of affairs of the corporation. Prasar Bharati Board does all such acts and exercises all those powers which may be done by the corporation.

The Board shall consist:

• Chairman
• One Executive member
• One member (Finance)
• One member (Personnel)
• Six Part-time members
• Director-General (Akashvani), ex officio
• Director-General (Doordarshan), ex officio
• One representative of the Union Ministry of Information and Broadcasting (India), to be nominated by that ministry and
• Two representatives of the employees of the corporation

The President of India appoints Chairman and other member except for ex-officio members, a nominated member and the elected members. There shall be not less than six meetings every year but three months shall not intervene between one meeting and the next meeting.

Functions and Objectives of Corporation

The main motive of the corporation is to educate, inform and entertain the public. By conducting and organizing public broadcasting services to people, it has become easy to provide the information to the people in an easy manner. It also ensures the balanced development of broadcasting on radio and television.

The following objects are namely:

• To provide the autonomy to Akashvani and Doordarshan, so that to ensure the function in a fair, objective and creative manner.
• To uphold the unity and integrity of the country.
• To maintain the democratic and social values which are enshrined in the constitution.
• To look after the safeguarding of the citizen’s right to be informed freely, truthfully and objectively.
• To spread literacy, agriculture, rural development, health, family welfare, environment, science and technology.
• To encourage healthy competition and spirit of sportsmanship by providing adequate coverage to sports and games.
• To promote cultures and languages of the various regions by broadcasting many programmes.
• To provide special needs of the youth always organize special programmes.
• To remove the problems of women, pay special attention to the upliftment of the women.
• To take special steps for the protection of the children, the aged, the blind, the handicapped and other vulnerable section.
• To protect the rights of working classes and advancing their welfare.
• To provide the suitable programmes for the needs of the minorities and tribal communities.
• To promote national integration that will maintain the community language of the nation.
• To promote research and development activities of radio broadcast and television broadcast technology.

Parliamentary Committee

According to section 13, it shall consist of twenty-two members of Parliament, out of which fifteen from the House of the People shall be elected by the members and seven from the Council of States shall be elected by the members. The committee shall function according to the rules made by the speaker of the House of the People.

Powers of Central Government

According to the Act, the government has the following powers are:

• From time to time when the government may think fit may issue the directions to the corporation for the unity, sovereignty and integrity of India.
• The Central Government require the corporation to furnish the information which government may consider.
• At the time of any difficulty arises, the central government may by order publish in the official gazette and make the procedure to remove the difficulties.
• The Central Government has also the power to make the rules. The rules may be considered in relation to:
• The salaries and allowances and condition of service in respect of leave and pension.
• Allowances payable to the chairman and part-time members.
• Control, restrictions and conditions for which corporation may appoint officers and other employees.
• Conditions and restrictions which a Recruitment Board may establish.
• Qualifications, other conditions and period of the office of the members of the Recruitment Board.
• Terms and condition of the service of the officers.
• Form and manner in which the annual statement of record shall be prepared.

Significance of Prasar Bharati

There are two significance of Prasar Bharati:

• India’s Public Service Broadcaster
• National Broadcaster

Public and Private Service Broadcaster

Private Broadcasters cannot fulfill the objectives of Public Service Broadcasting. The main motive of Private Broadcaster is to sell products of their advertisers. They depend upon the revenue from their advertisers. Commercial broadcasting will not meet the needs of public service broadcasting because commercial broadcasting assumes the audience as consumers and not as citizens.

National Broadcaster

National Broadcaster Prasar Bharati is the largest technical coverage. The Prasar Bharati services are available in all the corner of the country. In remote and border areas it reaches 99.3% and 91.42% in geographical areas. A strong National Broadcaster is a symbol of national pride for the entire nation. A National Broadcaster is the one which has a great strategic significance in emergency situations like natural calamities, war etc.

Freedom of expression is guaranteed as a fundamental right of the citizen in our constitution. And we all know that Prasar Bharati is a means of expression and a most important part of our democratic set-up. All media’s are enjoying full freedom of expressions like Print media and electronic media too. As it is well known that, Print media and electronic media are owned by big corporate sectors and now these companies are enjoying the freedom of expression. So we can’t imagine that public broadcaster suffers from every kind of restrictions that put it under the effective control of the government.

To control the growth of Prasar Bharati was in the interest of the private sector since Prasar Bharati came into being on 15th September 1997 with the formal Prasar Bharati Act notification and it commands an unstoppable reach.However, it has not been able to function as the medium of the people. It has practically no freedom except to sing the praise of the government of the day. It is not surprising that it has not risen in public esteem.

Autonomy for Prasar Bharati: Sam Pitroda Committee recommendations

Sam Pitroda Committee has taken minimal action to strengthen the Prasar Bharati in February 2014. Certain recommendations have been made by Sam Pitroda Committee for the autonomy of Prasar Bharati:

• Effective Freedom

To give the effective freedom to the Prasar Bharati, amend the Prasar Bharati Act, 1990.

• Manpower

In order to frame rules and regulations and to hire manpower without the approval of the Government, Prasar Bharati should be given the power.

• Genuine Public Broadcaster

Prasar Bharati should become a “Genuine Public Broadcaster” as against a “Government Broadcaster”.

• Direct -To-Home(DTH)

To make the Direct-To-Home (DTH) signals in a primary mode.

• Allocation of Funds

To increase the allocation of funds in order to content generation to 50% of the total expenditure within a period of 5-7 years.

• Technology Front

To meet the obligations of the public service broadcasting, satellite and digital cables TV operations should be expanded.

• Social Media

To define the social media strategy of Prasar Bahrain.

• Review of Channels

To review all the channels, Doordarshan and All India Radio and their sub-optimal utilization of the resources should be phased out.

• Prasar Bahrain Connect (PBC)

To set up PBC as the third arm of the public service broadcaster, Doordarshan and All India Radio.

• To create best broadcasting service

It should be best broadcasting service in the world using next-generation opportunities, strategies, technologies and etc.

Manpower Audit after the recommendation

After the recommendation of Sam Pitroda Committee, Prasar Bharati has prepared a tender to start the manpower audit of the organization in January 2018. The Broadcaster has allowed an RFP (Request for Proposal) by Broadcast Engineering Consultants India Ltd (BECIL). To carry out the audit, a private agency would be finalized soon.

Multiple Manpower Challenges: There are two multiple manpower problems which Prasar Bharati has been facing:

1. Several employees have not seen promotions in a long time.
2. The last recruitment program took place in 1996.

World’s largest Public Broadcaster

According to the report of Sam Pitroda Committee, 2014, Prasar Bharati had 33,800 employees and a sanctioned strength of 48,022. On the other hand, BBC had 16,858 staff and public broadcasters of Japan and China had 10,000 each.

Number of channels in Doordarshan

Doordarshan operates 23 television channels and Direct-To-Home (DTH) platform DD Free Dish.

Number of radio stations in All India Radio

AIR operates 420 total radio stations which include FM Channels, local radio stations, Vividh Bharati Stations and five community radio stations.

Prasar Bharati signs MOU to set up cooperation in the Broadcasting Sector

Recently in 2017, Prasar Bharati signed MOU with Morocco’s Societe Nationale de Radiodiffusion et de Television for the cooperation of broadcasting sector. The MOU was signed during the fifth India Morocco Joint Commission Meeting (JCM) in Rabat, Morocco’s capital. The MOU was signed by Kheya Bhattacharya,Ambassador of India, on behalf of Prasar Bharati and Faycal Laraichi, Chief Executive Officer of SNRT.

Case Laws

• Union of India v. Board of Control for Cricket in India and Ors. [3]

The Supreme Court held that Prasar Bharati cannot engage in free transmission of the signals of live sporting or cricketing events, received from content right holders/owners, to cable operators.

• Union of India v. Cricket Association of Bengal [4]

Supreme Court held that broadcasting should be under the control of public and should be operated by the public statutory corporation.This implicit in Article 19(1)(a) where the corporations, whose constitution and composition must be in such order to ensure their impartiality in political, economic and social matters and other public issues.

The right of free and expression includes the right to receive the information. It is necessary that citizens have the benefit of the plurality of views and must have opinions on the all public issues. There must be a diversity of opinions, views, ideas and ideology among the citizens. Private Broadcasting is more prejudicial to the right of free speech of the citizens than the government controlled media.

• BCCI-Nimbus Prasar Bharati Case [5]

According to the Court, the objects and purpose of the Sports Act are to provide access to the largest number of the viewer through sports broadcasting channels with Prasar Bharati. Court also said that it should be essentially directed towards those citizens who do not have access to cable television and only access to terrestrial and DTH networks of Prasar Bharati. Court also pointed out the virtue of Section 12(3)(c) of the Prasar Bharati Act.

Today’s Broadcasting Scenario

Today, collaboration with western channels has become an accepted practice in India. India is a country where there are number of cultures, religions and languages. The National Broadcaster has a vital role in the national security, integrity and unity. It can’t be expected from Private Commercial Broadcaster for the national integration. In February 2007 when the coverage given by the private broadcasters to the 36th national games held at Guwahati, Assam shows their real attitude. Because of this, it provoked the I&B Minister to ask in a television interview, “Why you not shown National games, Are you not Indian citizens, only Prasar Bharati Shown it”.

In a democratic country like India, the basic objective of National or Public Service Broadcaster is to strengthen the democratic process by providing information, promoting debate and discussions on all the main issues.

List of relevant websites

Prasar Bharati:http://prasarbharati.gov.in

All India Radio-Organization:www.allindiaradio.org

All India Radio-News Services Division:http://www.newsonair.com and, www.newonair.nic.in

Doordarshan: http://www.ddindia.gov.in

Ministry of Information and Broadcasting: http://mib.nic.in

References

[1] A.K. Chanda Committee was formed under the Broadcasting and Information media to evaluate work of different media under the ministry of Information and Broadcasting.

[2]New Delhi- 110001 (Telephone: 011-23421300, FAX: 011-23421956, e-mail: dgair@air.org.in), or, Chief Vigilance Officer(CVO), Prasar Bharati, Prasar Bharati Secretariat, PTI Building, Parliament Street, New Delhi-110 001

[3]http://supremecourtofindia.nic.in/supremecourt/2015/4418/4418_2015_Judgement_22-Aug-2017.pdf

[4] AIR 1995 1236, 1995 SCC (2) 161 https://indiankanoon.org/doc/539407/

[5] Check the judgment here

http://www.livelaw.in/delhi-high-court-rules-favour-bcci-nimbus-prasar-bharati-case/

The post Prasar Bharati (Broadcasting Corporation of India) Act, 1990 – An overview appeared first on iPleaders.

“The most powerful way to win an argument is by asking questions, it can make people see the flaw in the logic of the opponent.”

In this article, Akanksha Singh of Meerut College discusses “How to become a great lawyer”.

Introduction

A great lawyer is a one who efficiently takes the responsibility of his client’s case. Working as a lawyer involves the practical application of abstract legal theories and knowledge to solve the specific individualized problem. It is all about how innovative your delivery of legal service is.

Qualities of a Great Lawyer

What does it take to be successful in the legal profession? As they say, practice makes a man perfect! Here are few qualities that you should consider to become a great lawyer:

Analytical Skills

1. To be a great lawyer you should develop an analytical skill and ability to make sense of large volume of information.
2. Both the study and practice of law involve gathering numerous information which is logical.
3. Sometimes there is more than one reasonable conclusion to resolve the issues. A lawyer must have the skill to figure out which conclusion is more suitable to resolve an issue.

Creativity

1. Great lawyers are not only logical and analytical, also they display a great deal of creativity in solving the issues.
2. Being creative makes a lawyer to think of a reasonable solution when the problem arises.
3. The best solution is not always the obvious one for a great lawyer it is necessary to think outside the box.

Research Skill

1. Able to research quickly and effectively is important to understand your clients, and you can easily prepare your legal strategies.
2. Preparing a legal strategy generally requires a voluminous amount of research. To become a great lawyer you should have excellent research skills to be able to gather important information.

Interpersonal skills

1. An excellent interpersonal skill and ability to develop the good relationship with every person they work with, are necessary for a great lawyer.
2. The lawyer should strengthen the mutual relations to cultivate expert and professional solidarity and friendly relations in their work.

Logical thinking ability

1. It is necessary to think logically, make reasonable judgments and assumption based on present information.
2. The lawyer should not see the opposite party as an enemy. Thus the lawyer relation with the opposite party should be concrete. Nevertheless, this should not affect the representation of his client.

Perseverance

1. Many hours of work is required in most of the cases with great research and writing work a great lawyer must have the ability to put in the time.
2. You must be dedicated towards your work and get it done with all your efforts. You must have the perseverance to complete the work to a successful finish.

Public Speaking Skills

1. A great lawyer is a one who is well spoken and expressive. He should have great written communication skill and must be a good listener. In order to argue before the court, good public speaking skills are mandatory.
2. There should be excellent public speaking skills and ability to address a courtroom comfortably.
3. You can develop your communication and speaking skills during your studies by taking part in moot court and other general public speaking.[1]

Writing Skills

1. Good writing helps in making the position stronger and wins cases, the combination of great speaking and writing skill is unbeatable.
2. To become a great lawyer writing skills is extremely important which is very useful in preparing arguments, briefs, and other legal documents.

Judgement

1. One must have the ability to draw reasonable, logical assumptions. You should able to consider the judgments critically so that you forecast area of weakness in your argument.
2. You must be able to spot points of weakness in an opposition argument. Going through the judgment is more beneficial in the legal profession. [2]

Client care

1. When the client is poor and incapable to pay complete remuneration to the lawyer, it should not affect the provision of legal service because the lawyer’s vocation is traditional and honorable.
2. Successful lawyers are those who treat the clients with the highest level of professionalism and courtesy. A client may not have known about legal aspects but they can surely identify the bad behavior, ignorance, a lack of responsiveness, missed deadlines, and of course bills which are higher than expected.

Leadership quality

1. Without leadership quality, no one can become a great lawyer. A lawyer must be a great manager and a leader, therefore leadership skill of a lawyer is necessary to succeed.
2. They should know how to manage every person working under them in a most peaceful and responsible way.[3]

To learn how to develop the qualities of a great lawyer visit here

Code of conduct for lawyers

The Code of Professional Ethics of the lawyers is a sum of adopted principle, which serves as directions to the lawyers during their work. These principles are in compliance with the general principle of professional ethics of the Bar.

All lawyers are obliged to take care of the regular application of this code

General Provision

Relationship with the court and other bodies

1. During the execution of the function, the lawyer should protect the reputation of the court, and other judicial bodies where he represents his client. He is obliged to give decent resistance against any attempt to violate the principle of democracy and personal.
2. The friendly relation of the lawyer with the judge or other representatives should not be expressed during the execution of lawyer’s function. Before the court and the other bodies lawyer should act as his client’s proxy for protection of their rights and legal interest. He is also obliged to bring up the factual state clearly and to the point, orally or written.

Professional Secrets

1. Any information given to the lawyer from his client regarded the legal advice, representation or defense shall be considered a professional secret. The lawyer should keep professional secret in order to respect disciplinary responsibilities. It shall be considered to be a secret during the representation or defense, as long as its public disclosure may damage the party.
2. If a client demands from the lawyer to represent him opposite to the factual truth, a lawyer may refuse to represent him. If the lawyer finds out the information which is not disclosed by his client during the representation of the legal entity or if he found out the information while he was working in the same, he may not use any such information in any procedure to the determinant of the organization.

The lawyer’s office and its firm title

1. A firm title of the lawyer’s office should be placed on the building where the office is situated but its form and content should not be used for an advertising purpose.
2. The lawyer should meet his client in his office, in order to maintain the office reputation. It is indecent if the lawyer performs his activities in the court’s passage, restaurant, and other indecent places.[4]

How to become a great lawyer

The great lawyer is the one who has a responsibility to ensure justice for his client, he not only understand the case but also guides his client through the legal system. He is the one who can easily make all differences in his client’s case. There is numerous peculiarity that makes a successful lawyer.

Know the Law

One should know every law (especially in the area where they are working), there should be nothing which is skipped.

Contract Drafting

• Drafting is a preliminary stage in which a lawyer begins to develop a more strong position. Contract drafting formulated the term of contractual relationship, it includes terms and conditions. For a lawyer, it is necessary to frame the facts, terms and conditions a clear form.
• If you want to be a corporate lawyer then it is must for you to know how to draft a contract.
• Drafting of the contract is a very basic skill which should be learned by every lawyer also it is a profitable part of any legal practice, no matter in which area they specialize. To know more about drafting or if you want to learn how to draft a contract you can access the link here
• Creation of commercial contract includes:Registration requirements
• • Stamping
  • Attestation
  • Notarization
  • Apostillation

To know more please visit here

Conduct research when needed

• The lawyer is required to improve his general and professional knowledge permanently. You should follow the research regulations and expert literature in the field of law, also should convey the knowledge unselfishly to other lawyers especially to the associates and lawyer apprentices.
• If you are dealing with a case which is involving an issue that you have not negotiated with before, one must do the legal research thoroughly and find answers and key points. A great lawyer doesn’t assume that they know everything, they always believe in an ongoing learning process. They face the new challenges every day and they believe in working on them.
• Legal research has changed rapidly over 20 years. One should be more familiar with electronic research methods. To learn how to conduct the research you can do various courses, visit here
• Know your information
• A great lawyer is the one who keeps himself up-to-date regarding various laws, amendments, judgments and new developments.
• The lawyer should evolve his intellectual abilities, professional and other social activities, always in the framework of the lawyer’s vocation.

Learning essential skills

One must have the ability to acquire the following prerequisite skills

Practice critical thinking

• In order to be a great successful lawyer, you must have an ability to look at and understand the legal issues. Proper analysis will help you to identify the issues and in developing a sound legal argument to make your client’s position stronger.
• The lawyer is obliged to represent and defend his client conscientiously, using all necessary means which are permitted by the law but the lawyer should avoid submitting unnecessary brief or proposals.
• It is pertinent to grasp all the matter of fact and matter in issue before you make your conclusion.
• To be a great lawyer you should not always rely on your client to tell you everything openly. A client may not provide you every information because they may not know what is important or what can be the loophole in their case. Ask the questions from your client which are necessary and important enough to find out the information that you need.

Develop your writing skills

To be a great lawyer you should not underestimate the writing skills that are needed. Lawyers spend a great deal of their time in filing pleading and other documents with the court. You are more likely to create a good position for your client if you have good writing skills. Your pleading must contain all the general rules given below:

• You must hit the element of each claim being brought to the court’s attention
• Clarify the facts.
• Legal issues must be identified.
• Determine the laws and regulations which apply to your issue.
• Apply the laws to the fact of your case

Work on your oral communication skills

• To become a great lawyer you must have excellent communication skills. You must be able to articulate a client’s position to the court, effectively question a witness, argue to a jury.
• To be a great lawyer you should know how to have effective communication with other lawyers because it will help in settlements that are acceptable to all parties.
• In dealing with the court, you should be able to concisely and effectively argue for your client’s position by keeping in mind you should not disrespect opposing counsel or the court.

Attend trial practice seminar

• Trial training is offered by national organizations for those lawyers who regularly represent clients in the courtroom.
• There are trial techniques that can be valuable in becoming a great lawyer, also it improves your trial practice skills, communication skills, and increase your knowledge.

Join a local, state, or national bar association

• To become a great lawyer it is necessary that you should learn more from experienced attorneys. Bar associations often sponsor Continuing Legal Education (CLE) Seminars and other valuable opportunities for professional development.
• You may also develop a network of people who can resolve your queries.

Find a mentor

Every lawyer needs a more experienced person to guide him and it is necessary to become a great lawyer, without any proper guidance you cannot put yourself into qualitative work, and this will help you in present your case in the most valuable manner.

Decorum to Clients, Colleagues, and Judges

To become a great lawyer you should be more polite, patient and respectful towards your client, Judge, colleagues, court staff etc.

Speak politely to Judges and Court staff

Your professionalism depends on how you present yourself in the Court, you should be very careful toward your behavior. Your behavior represents your personality, to become a great lawyer you should learn how to act and react to various circumstances.

Use prudence and grace when dealing with client

• Try to look at the situation from the point of your client. You don’t have to represent every client that comes along but make sure who you represent you will give all your 100% to make the position of your client stronger.
• The lawyer is obliged to inform his client about the expense and remuneration for the representation, if the client’s condition is not financially strong, the lawyer should adjust according to the financial condition of his client.

Listen to your client

• The lawyer as a provider of legal service and performer of public authorization should give legal assistance, represent or defend the client every time when a client refers to him/her for that purpose.
• Even if your client has made a wrong decision throughout the course of your representation, never judge your client, just listen and advise, figure out how can you handle the situation and resolve the issue then and there.

Be honest with the Court, colleagues, and your Clients

• The lawyer is obliged to establish a relationship of confidence with his client to remain loyal to him. Being dishonest will take you nowhere, in fact, it ends up with your negative impact on others. If the disciplinary commission of your state finds that you have violated the professional rules of conduct then your license can be revoked, so be careful that you should not play any role in dishonesty.
• While representing the client, the lawyer should accept neither the offer to represent the opposite party in the same case nor the other activities which are opposite to his client’s interest.

Question witness appropriately

• A great lawyer knows how to question witnesses, present evidence, and make arguments in court. Before you make the courtroom debut you should learn how to follow the procedure and rules of the courtroom and how to prove your case.
• While interrogating a witness, ask appropriate and relevant questions. Don’t sarcasm the witness if he becomes emotional and maintains the professional distance. Give special care to a minor witness or victim of a violent crime. You will be judged by the way you treat others during a court proceeding.

Maintaining a High Level of Ethics

For legal practitioners, ethics takes to another level of importance. As a professional, you should seek to maintain the highest standard of honesty, integrity, fairness in your dealings.

Keep attorney-client relationship confidential

Do not disclose the information given to you by your client, you can provide the information to the court which is necessary and only to the extent you are required to do so.

Follow state’s rules of professional conduct

Every state has a set of rules that govern a lawyer’s behavior. Make sure that you will follow these rules otherwise you run the risk of being disciplined, which may result in a suspension or revocation of your license.

Comply with law

If a crime is committed by you, not only you will be subject to the penalty but also to professional misconduct. Depending on the nature of a crime, you can lose your job too.

Making a difference

To be a great lawyer it is not necessary you should earn six figures. So should make yourself best at your work, be prepared for every kind of situation. Be a lawyer on whom everyone can rely before handing over their case.

Know that there are many different paths to be a great lawyer

There are lawyers who consider themselves successful when they become a partner at high-powered law firm, some are happy in living their solo practices, some other consider non-profit or public interest work to be the key to success. In the end, one will become a great lawyer who has to bury himself in the cases he is dealing with and analyze, evaluate and then conclude.

Manage stress

Learn how to let go of stress and manage it on a day-to-day basis. This step will allow you to think more calmly and clearly which will be very fruitful for your career.

Be happy with your career

Be passionate towards your career, enjoying your profession won’t allow you to feel burdened and you will learn every time something new with your experience, never regret your choice. A great lawyer is a one who gives his 100% to his profession without any hesitation and fear inside.[5]

Prepare a trial notebook

To keep track of the questions you want to ask, the points you want to put in argument and the facts record them in a trial notebook.

Preparing a trial notebook is one of the most important tasks it contains all the things which you need during the trial. Your notebook should reflect the particular requirement of the case. The trial notebook should include:

• Assemble evidence and create a list to keep track of exhibits.
• Complete your trial outlines.
• Make a list of the witnesses in order to anticipated appearance.
• Prepare a trial brief showing summary of law and facts of the case.
• Prepare a separate file for each witness.
• Prepare the list of the witness to present to the judge.
• Write an outline of your opening statement and closing arguments.
• Prepare sample verdict forms.

Meet your deadlines

Once you file the necessary papers related to your case, you will face a number of deadlines. When the case is heard by the jury he will tell your opponent what evidence you introduced at trial. Make proper notes of these deadlines and great lawyer don’t miss to meet each of them.

Learn the elements of your case

The numerous element that a great lawyer needs to prove in order to win. You need to plan ahead carefully to make sure that you can prove every single element of your case, and you should be able to disapprove the elements of your opponent.

Evidence should be admissible

You can figure out which evidence will help you to prove the facts. Rules of evidence will determine whether a particular document, the statement is admissible in the court or not. You should be ready with enough research to make sure you will be able to present the evidence you need to win.

Don’t interrupt

You should not interrupt the opponent and especially the judge. You will get a chance to represent yourself so be patient and listen to the opposite party carefully. [6]

Things to do inside the law school to become a great lawyer

Mooting Where to start your preparation towards

Mooting is a presentation which is orally done of legal issues or problems before a judge against an opposing counsel. It is an extracurricular activity done in the law school. It helps in building up the confidence and help to know how to present the case before the judge. It is an opportunity to learn from your mistakes before becoming a lawyer

It involves:

• Drifting
• Argument, and
• Presentation

The thing which can be learned by taking part in the moot competition:

• Preparation of speech
• Research
• How to speak in the court
• Handling the situation
• Understanding and framing powerful arguments
• Memo architecture
• Understanding technical aspects

To learn more about the mooting visit here

How to set up your law practice

• Two kinds of litigation practice are:Criminal Litigation, and
• • Civil Litigation
• Usually, people spend a lot of time on developing their practice. If you want to become a great lawyer you should be more innovative and believe in a qualitative work which gives the best outcome. There are different course for young lawyers i.e. “Nani Palkhivala Law Practice Management” it may help you in various forms and a way to set up your law practice in a strong way.
• Doing a practice in a more systematic way can make a world of difference, the lawyer should be more focused and organized, it is most important to develop skills and knowledge regarding the law and the way to implement it to start your own practice.You can through here and here learn more about how can you set up your law practice in a most productive way.

What is the Difference between Good Lawyer and Great Lawyer

Some professionals may think it is enough to be a good lawyer. Where the fact is it simply isn’t enough in today’s scenario to be just a good lawyer.

[7]

To know more please visit here  

Conclusion

A Great lawyer is more creative, expressive, and never interrupt his opponent and the judge. He has an ability to think logically, always do a good research, and has analytical skill. He knows how to establish a good relationship with the court and other bodies and maintain his dignity. It is necessary, to be honest with the court, colleagues, and clients. A great lawyer knows very well how to question the witness and maintain the high level of ethics.

References

[1] Qualities of a great lawyer

http://environmentallawschools.org/resources/top-10-qualities-of-a-great-lawyer(Date of visit is 14/02/18 and the time of visit the site is 11:05 AM IST)

[2]https://www.allaboutlaw.co.uk/stage/becoming-a-lawyer/7-qualities-every-good-lawyer-should-have(Date of visit is 14/02/18 and the time of visit the site is 12:05 PM IST)

[3] Characteristics of a successful lawyer.

http://blogs.lexisnexis.co.uk/futureoflaw/2017/06/characteristics-of-a-successful-lawyer/(Date of visit is 14/02/18 and the time of visit the site is 3:05 PM IST)

[4] Code of professional ethics for lawyers.

http://www.ccbe.eu/NTCdocument/Code_of_ethics_20061_1237990282.pdf(Date of visit is 15/02/18 and the time of visit the site is 1:05 PM IST)

[5] Successful lawyer

https://www.wikihow.com/Be-a-Successful-Lawyer(Date of visit is 14/02/18 and the time of visit the site is 3:05 PM IST)

[6] How to become a great lawyer.

https://www.nolo.com/legal-encyclopedia/tips-success-courtroom-29462.htm(Date of visit is 16/02/18 and the time of visit the site is 12:00 PM IST)

[7] Difference between a good lawyer and a great lawyer.

https://www.legalmarketingblog.com/marketing-tips/the-difference-between-good-lawyers-and-great-lawyers/ (Date of visit is 16/02/18 and the time of visit the site is 3:05 PM IST)

The post What makes a great lawyer? appeared first on iPleaders.

In this article, Nawlendu Bhushan of Campus Law Centre discusses parliamentary motions.

Introduction

Any decision by the Parliament, be it on a legislative proposal or a policy, is taken after due consideration and voting. Also, the legislature expresses its opinion or seeks the attention of the government on matters of public importance. A group of orders is needed to facilitate discussion and decision-making involved in the Parliamentary processes. Robert’s Rules of Order is one of such orders. In India, parliamentary procedures are influenced by these rules. Both the houses of our Parliament have separate Rules for Procedures and Conduct of Business in the respective house. In the parlance of these Rules for Procedures, this article explains motions, its types and the features of the different type of motions.

What is a parliamentary motion?

The proper way for an individual to propose that the group take a certain action is by making a motion. [1] In the parliamentary parlance, a motion means any formal proposal made to the House by a member for the purpose of eliciting a decision of the House. It is phrased in such a way that if adopted it will purport to express the judgment or will of the House. Any matter of importance can be the subject matter of a motion. The mover of the motion frames it in a way in which he/she wishes it to be ultimately passed by the house and on which a vote of the House can conveniently be taken. [2]

Motions bring new business to the House. It consists ofnumerous other proposals to take procedural steps or carry out other actions relating to a pending proposal (such as postponing it to another time) or to the assembly itself (such as taking a recess).[3]

Kinds of motions in a standard parliamentary procedures

Main Motions have for their object the bringing of questions or propositions before the assembly for consideration. Only one main motion can be considered at a given time by the assembly.

Subsidiary Motions have for their object the modification or disposition of the main motion being considered. It is in order to propose them while the main motion is still before the assembly, and to vote upon them before voting upon the main motion.

Privileged Motions have not connection whatsoever with the main motion before the assembly, but are motions of such importance that they are entitled to immediate consideration. The main business before the house may be temporarily set aside to address a privileged motion.

Incidental Motions arise “incidentally” out of the business of the assembly, and have very common characteristics.

General rules for parliamentary motions

As per Rules of Procedure and Conduct of Business of the Houses:-

• No discussion on a matter of general public importance can take place except on a motion made with the consent of the Speaker/Chairman as the case may be.
• Notice of motion must be given in writing addressed to the Secretary-General.
• There are certain parameters for the admissibility of the motion.
• The Chairman/Speaker decides the admissibility of the motions as per the parameters.
• Motions on matters pending before tribunals or commissions are not admitted.
• The Chairman/Speaker allots time for discussion on the matter raised in the motion.
• On the allotted day the Chairman/Speaker may put every question necessary to determine the decision of the House on the original question.
• The Speaker/Chairman may prescribe a time limit for speeches on the motion.

Types of motions in Indian Parliament

There are various types of motions which are as under:-

• Privilege Motion
• Censure Motion
• Call-Attention Motion
• Adjournment Motion
• No-Day-Yet-Named Motion
• Cut Motions
• No Confidence Motion
• Confidence Motion

Privilege motion

The Constitution grants certain powers, privileges and immunities to the Parliament, its members and committees. Such powers and privileges are regulated as per laws made by the House. [4]

According to Erskine May,  “Parliamentary privilege is the sum of certain rights enjoyed by each House collectively… and by members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals.”Breach of privilege is punishable under the Law of the Parliament.

A privilege motion is introduced by the opposition against a minister in case the minister has misled the House by providing false information. Its purpose is to censure the concerned minister.

A privilege motion can be moved against a non-member as well as a member.

Censure motion

Censure motion is moved by the opposition against a specific policy of the government or against a minister or against the whole council of ministers. It can be moved only in the lower house of the parliament. The motion should be specific and self-explanatory so as to record the reasons of the censure precisely and briefly.

No leave of the House is required to move a censure motion. If it is passed, the Council of Minister is bound to seek the confidence of the Lok Sabha as early as possible.

Call attention motion   

A member may, with the previous permission of the Speaker, call the attention of a Minister to any matter of urgent public importance by moving a motion. The Minister may make a brief statement or ask for time to make a statement at a later hour or date. The number of call-attention motion is restricted to two motions by one member in a single sitting.

Adjournment motion

A motion for an adjournment of the business of the House for the purpose of discussing a definite matter of urgent public importance may be made with the consent of the Speaker. The Adjournment motion if admitted leads to setting aside the normal business of the House for discussing the matter mentioned in the motion.the motion shall be restricted to a specific matter of recent occurrence involving the responsibility of the Government of India.

No Day Yet Named motion

If the Speaker admits notice of a motion and no date is fixed for the discussion of such motion, it is called No-Day-Yet-Named motion. The Speaker may, after considering the state of business in the House and in consultation with the Leader of the House or on the recommendation of the Business Advisory Committee allot a day or days or part of a day for the discussion of any such motion.

Cut motions

Motions can be moved to reduce demand for grants. Such motions are called cut motions.  If a cut motion is adopted by Parliament and the government does not have the numbers, it is obliged to resign. There are three types of cut motions:-

Disapproval of Policy Cut is moved to reduce the amount of the demand to INR 1/-’ representing disapproval of the policy underlying the demand. A member giving notice of such a motion has to indicate in precise terms the particulars of the policy which the member proposes to discuss. The discussion shall be confined to the specific point or points mentioned in the notice and it shall be open to members to advocate an alternative

policy;

Economy Cut motion is moved to reduce the amount of the demand by a specified amount representing the economy that can be effected. Such specified amount may be either a lump sum reduction in the demand or omission or reduction of an item in the demand. The notice to move this motion indicates briefly and precisely the particular matter on which discussion is sought to be raised and speeches are confined to the discussion as to how economy can be effected;

Token Cut motion is moved to reduce the amount of the demand by INR 100/- in order to ventilate a specific grievance which is within the sphere of the responsibility of the Government of India. The discussion on this motion is confined to the particular grievance specified in the motion.

No Confidence motion

This motion is introduced in the Lok Sabha by the opposition. It is a motion expressing want of confidence in the Council of Ministers. No-confidence motions are subject to following restrictions, namely:—

(a) leave to make the motion shall be asked for by the member when called by the Speaker;

(b) the member asking for leave shall, that day give to the Secretary-General a written notice of the motion which such member proposes to move.

If the Speaker is of opinion that the motion is in order, he shall read the motion to the House and request those members who are in favour of leave being granted to rise in their places. At least fifty members are required to rise if the leave is to be granted. The motion has to be taken up within 10 days from the date on which leave is asked for. After the discussion, the Speaker puts every question necessary to determine the decision of the House on the motion. A Government can be dismissed by passing a direct vote on a no-confidence motion.

Confidence motion

It is also called “trust vote”. Confidence motions have evolved as a counter by the government when it wants to demonstrate its majority. There is no special provision in the rules for a confidence motion — such a motion is moved as an ordinary motion. In recent times, when no party has had a clear majority, the president has appointed a prime minister who he believed had the majority support. This person is expected to prove his majority through a confidence motion.[5]

If both, the motion for no-confidence and a motion for confidence are tabled, the speaker is to give precedence to government business and take the motion of confidence.

If the prime minister loses a motion of confidence, he is obliged to resign, and the president should try to identify another person who enjoys the confidence of the Lok Sabha. Preparing for competition examinations? You can visit the video here for learning all the motions in one go.

References

[1]http://octsa.ua.edu/uploads/1/6/6/9/16699238/basics-of-parliamentary-procedures.pdf

[2]http://www.netapedia.in/blog/?p=86

[3]http://www.gkplanet.in/2017/06/types-of-motions-in-indian-parliament-proceedings-pdf.html

[4]Art 105, 194

[5]http://www.prsindia.org/media/articles-by-prs-team/rules-of-confidence-685/

The post An overview of parliamentary motions appeared first on iPleaders.

This article is written by Aditya Shrivastava, content marketing executive at iPleaders.

A few days after I joined a reputed MNC in India, I realized my reporting manager wasn’t remotely close to what I’d expected. I thought I could do a better job at it than him.

This wasn’t because he was too strict or demanding. In fact, he became fond of me in a couple of weeks. My expectations didn’t match reality because he just didn’t know how to handle the projects at hand, the employees reporting to him or issues arising out of the project.

After speaking to a couple of friends in various organizations, I realized that this problem isn’t specific to my office only. There is a dearth of managerial skills in lawyers working in companies across the country. To be absolutely fair to them, they cannot be blamed for it. At law school, while aiming to graduate with a degree in law, management is not a subject that gains any importance; it is an acquired skill. However, the magnitude of this incapability is far-reaching.

As per fortune.com, according to the National Association for Legal Professionals Foundation, in 2010, firms with 251 to 500 attorneys lost 19% of their associates, with the top reason for departure listed vaguely by firms as “work quality standards were not met.” Poor management is one of the key factors that most lawyers working in a company complain about. While the companies are hell-bent on providing world-class customer experience, there is little or no attention paid to issues employees are facing. The case worsens, especially when in a compliance or consultancy company, legal work is generally put at the backend.

In management advice books, David Maister provides some thought-provoking pieces on the management of the global services firms. I would like to quote what he has to say about lawyers turned managers, “The ways of thinking and behaving that help lawyers excel in their profession may be the very things that limit what they can achieve as firms. Management challenges occur not in spite of lawyers’ intelligence, but because of them.”

What he says stands true. Lawyers are a very self-oriented species. They only know how to manage their own work. Most of the lawyers listen to their clients only to the extent they are able to extract relevant information from them. The minute the information turns into a rant or a sad-tale, they are likely to turn a deaf ear. However, this is a problem the minute they step inside a company. Most companies do not function like law firms. The quest for autonomy combined with high level of skepticism can make a lawyer a disastrous manager.

A lawyer may be exceptionally brilliant at what he does but he might make a terrible manager. Here are some reasons why :

1#  Misuse Of The Newly Found Freedom

A company’s work environment is quite different from a litigation firm. In a typical litigation law firm, the day starts with attending court proceedings. After a whole day full of astriction, lawyers return to their desks and bury themselves in huge files, drafts, research, and clients. There is never a fixed time to return home. However, a company generally expects all their employees to enter the office by 9 and leave by 6, unless the workload says otherwise.

The leaves you are entitled to in a company are in the hands the HR Manager. But allowing those leaves is solely at your reporting managers discretion. While everyone in my previous office used to enter the office at 9 and leave by 6, irrespective of whether the work for that day has been done or not, our manager used to walk in around 02:00 pm, check his emails and leave. His major concern was client retention, which he assured by delegating all of his responsibility to the team. He worked from home on most days. The repercussions of such laid-back attitude were that the company lost one major project. In addition, as his focus was on client retention, the company has not been able to get hold of any new client.

A cultural shock from a tough-on-deadlines and strict work culture in a law firm to a relatively relaxed company (not all companies are relaxed) is likely to affect the work quality of a lawyer recruited by the company as a legal manager.

2# Professional Detachment And Dispassionate

Lawyers are professionals who are known to be low on socializing skills and team bonding. Ask any lawyer: Is a certain position you hold more important than relationships? Most of them would pick the former. Being low on social skills and intimacy is one of the biggest challenges a lawyer can face as a manager. A great business strategy backed by law revolves around being a team player. All the employees, whether big or small roles, need to be understood, appreciated, criticised if needed, involved and motivated. Lawyers are generally so focussed on the result that they turn a blind eye towards such crucial aspects. It doesn’t matter if they are dealing with the clients or the employees. If it comes to legally assisting a company’s business they can be pretty clinical in their approach. Their approach is based on checking on performances, scorecards, incentives and other metrics.

If you ever ask a junior lawyer if he was coached well while he was assisting a senior, he would often say, that he learnt by doing the work himself. Unlike doctors, lawyers are mostly self-trained and therefore believe in the same when they switch to the companies. Rather than coaching or mentoring, they provide solutions like shadowing, which is a corporate terminology for seeing your colleagues and learning by yourself. This leads to the freshers facing issues in adapting to the work, without any guidance and subsequently quitting.

3# Low-Trust Work Culture

Lawyers are extremely low on the trust factor. Termed as “professional skeptics,” a lawyer is trained to be suspicious. It is also because that helps them have an eye for detail and they don’t miss out on anything. Needless to say, after reading numerous case laws and subjects like criminology, it becomes difficult for lawyers to trust anyone easily. This is one major quality for a lawyer to possess because it may eventually lead to victory in a case.

However, this particular quality turns problematic when they cannot trust their own employees. Generally, in a low-trust environment, no one relies on anyone. This leads to a huge communication gap in a team, and it becomes more susceptible to fall out. Often large team building and maintaining uniform quality standards come out as a major challenge in such cases.

#4 Challenges To Collective Decision Making

The very essence of legal work culture is constant competition and contesting others. Most lawyers are trained to disprove another’s idea by coming up with a better idea. A lawyer is on a constant quest to fetch something better in terms of research, contentions or even a plan of action.

When such a group of individuals is put together in the same room, imagine the fallout that is bound to happen.

In a typical office meeting, we used to face endless theoretical explanations, countless rhetorical, pompous saber-rattling and were often in the middle of nowhere. The worst part about it was that our boss was equally involved in these debates, and did not act as a moderator. Coming up to conclusions in such a case becomes troublesome because the decision-making process becomes time-consuming and less effective.

If you have ever worked in a corporate set-up with an ineffective manager, you would probably agree with all that is written above. If your manager was good, you might differ. However, classic business strategies by stereotypical legal managers can only go to the extent of meeting targets. When it comes to employee satisfaction or retention, they suffer massively. This chaos requires a cultural revolution. It is at this point when a company should take steps to ensure that proper business administration techniques,  training material through online courses, and tools are provided to lawyers, who are being inducted into the company.

After all, a lawyer’s tactics should be a boon for the company.

The post Do lawyers make bad managers? appeared first on iPleaders.

In this article, Akanksha Singh of Meerut College discusses how to make the best use of Right to Information.

Introduction

Right to Information is a democratic function and a precondition to a good governance and it is a fundamental right under article 19 (1) of the constitution. It ensures that the people we put in power should be answerable and accountable to every citizen of the country.

“Where the society has chosen to accept democracy as its creedal faith, it is elementary that the citizen oath to know what their government is doing-Justice P N Bhagwati”.

Right to Information Act, 2005

1. Right to Information (RTI) is an Act of the Parliament of India which motive is to establish a right to information for citizens and replace the former Freedom of Information Act, 2002.
2. Any citizen of India may request information from a public authority (the Government body) and public authority is bound to reply immediately or within 30 days under the provision of the Act.
3. For certain categories of information, it is mandatory for every public authority to computerize their records. So it will help the citizen to minimum recourse to request for information formally.
4. On 15 June 2005, this law was passed by Parliament and enforced on 12 October 2005. RTI Act relax the Official Secret Act and various other special laws which restrict the disclosure of various information, Also the act codifies a fundamental right of the citizen.
5. Right to Information is an integral part of freedom of speech and expression are given in Article 19(1)(a) of the constitution. It has been held to include the right to acquire information, and also it includes right to communicate through any available media whether print, electronic, audiovisual, etc.
6. Besides Article 19(1)(a), there are other articles also which give a right to information under Indian constitution, they are:Article 311(2) and 22(1)
7. 1. Article 311(2) provides for a government servant to know why he is dismissed or removed and representation can be made against the order.
   2. Article 22(1) grounds of detention can be asked by a person.
8. Transparency and accountability in administration and mandates timely response to citizen requests for government information. Prior to the act being passed by the Parliament, the RTI laws were successfully enacted by the state governments of:Tamil Nadu (1997)
9. 1. Goa (1997)
   2. Rajasthan (2000)
   3. Karnataka (2000)
   4. Delhi (2001)
   5. Maharashtra (2002)
   6. Madhya Pradesh (2003)
   7. Assam (2002)
   8. Jammu & Kashmir has its own Right to Information Act 2009.[1]

Salient features of Right to Information Act, 2005

1. The term information includes any mode of information in any form of record:Documents
2. 1. Circular
   2. Press release
   3. Contract sample
   4. Electronic data, etc
3. Any citizen may request information from the public authority which is required to rely immediately or within 30 days.
4. Rights which are available to citizens are:Request any information (as defined)
5. 1. Take copies of documents
   2. Inspect documents
   3. Take certified sample of material work
   4. Obtain information in the form of printouts, floppies, tapes, videos, etc.
6. RTI Act overrides the official secret act and other law in force as on 15 June 2005 to the extent of any inconsistency.
7. Penalty for refusal to receive an application for information will is INR 250/- per day, which should not exceed INR 25000/- [2]

How RTI can prove to be useful?

In order for citizens to participate effectively in the democracy, they need information about government. Right to Information plays a very important role in providing information about numerous things.

Good Governance

RTI has played a vital in the governance of India. It is important for people to take a meaningful part in the affairs of the society. The people who paid taxes to finance public activities and voted for the formation of democratically elected Governments have legal rights to know as to what process has been followed by the government. It refers to the availability of information to the general public and provides clarity about the functions of government.

It is an important tool for social development and governance, it gives stringent punishment to guilty officials as well as awareness among the people for proper use of RTI. Right to Information helps in fulfilling these objects, and it is a natural corollary of good governance.

Good Governance basically has 4 elements:

• Transparency
• Accountability
• Predictability, and
• Participation

Links between the RTI and Good Governance

The act has an emphasis on good governance, the major elements have been identified, encouraging people’s participation in the development process, transparency, accountability and reduction in corruption.

Greater transparency

Public authority under section 4(1)(d) of the Act is required to provide reasons for its administration and a quasi-judicial decision to the affected person, to facilitate information a citizen has under section 2 (j) of the Act, the right to:

• Taking notes, abstract or certified copies
• Obtaining information in electronic form, if available.
• Inspect of work and documents, and
• Taking certified sample of material

Greater accountability

Every public authority is required to provide a reason for its administrative decision to the person who is affected under section 4 (i) (d) of the Act. The worldwide governance indicators report on 6 dimensions of governance for over 200 countries.

• Government effectiveness
• Political stability and absence of violence
• Rule of law
• Regulatory quality
• Voice and accountability
• Control on corruption [3]

RTI cases under good governance

There are many cases which have proved RTI is useful for Good Governance

Prabhu Dutt vs, Union of India & Ors

The Supreme Court held that the right to know news and information regarding administration of Government is included in the freedom of the press. [4]

SP Gupta vs. Union of India (AIR) 1982 SC (149)

In a country like India which is committed to a socialistic pattern of society, right to know becomes the necessity for poor, illiterate, and ignorant masses. [5]

Learn how to file RTI like an expert

Impact of RTI in rural area

The new legislation bought accountability, responsibility, and sensitivity to the development process in the rural area. The people of the rural area are less aware of knowing and exercising their rights which results in a high rate of corruptions. RTI can break the impact of corruption and provide people their share of interest which is assured them by Government.

An important feature that distinguishes the Right to Information from other rights is that it is rooted in struggle, justice, and concern for the survival of most disadvantaged rural area.

The act influences the rural people to come forward and take the information about the progress of various welfare scheme. RTI is creating a positive change in the backward area of:

• Rajasthan
• Uttar Pradesh
• Bihar, Jharkhand
• Madhya Pradesh
• Karnataka
• Assam, and
• Maharashtra

In Devdungri village, Rajasthan, the first battle to fight corruption by collecting information from public authorities. Aruna Roy, an IAS officer who left her job for the betterment of the people who belong to the village and often cheated because of their illiteracy. Aruna Roy in 1987 along with Nikhil Dey and Shankar Singh founded the Mazdoor Kisan Shakti Sangathan (MKSS).

In 1994 MKSS entered into a new phase breaking new grounds in fighting corruption through the new methodology of jun sunwais (public hearing) this movement shook the foundation of traditional monopoly and corruption of the state bureaucracy because of this the RTI Act that made access to official records available which helped the organization ‘Jun Sunwais’.

RTI is useful for students

In the level or corruption and accountability, the Act has brought positive changes. Students appearing for any competitive or board examination if not convinced with their marks can demand their original sheets under RTI.

RTI for marksheet evaluation and checking answer sheets

RTI for students enables them to check their sheets and file a report if mistakes are found if the correction of the answer sheet. The Supreme Court of India has specifically ruled that students who want to inspect their answer sheet will be allowed to do so under the RTI Act. Before the existence of RTI Act, students were only allowed to apply for re-totaling but could not ask for the revaluation of their answer sheet.

RTI for students is useful in competitive exams which follow the OMR method of answering

RTI for examination which involved Optical Mark Recognition (OMR), the following information can be obtained:

• A copy of OMR sheet
• Marks for all sections, along with the marks received in each.
• Cut-off marks for the category, and for all categories.
• The answer key to compare with the OMR.

RTI is useful for students with regards to educational institution

RTI for students helps in obtaining information. Students may ask their queries, also about the degree and mark sheets which have been issued by the government.

Private universities do not fall under the purview of RTI so students can file the application to public information branch of the concerned state where the institution is established and request them to verify the mark sheet which is issued. [6]

Case where student filed RTI

Gayatri Vishwakarma vs, Union of India on 3 July 2017

In the above case, the petitioner has been given the admission by the University. After following the procedure and after completion of the course of four years, the University did not issue the mark sheet to the student. The student filed the RTI application then she came to know that the University has no recognition to conduct the courses, in which she had been given admission by the University. [7]

Useful for prisoners who seek information under RTI

A prisoner can seek information using their rights about the facilities being made available to them in jail. Nothing can stop a prisoner to seek information under the Right to Information Act. The aim of RTI is to ensure the transparency and accountability in the function of public authority.

An undertrial prisoner

Prisoner of Hyderabad Central who was under trial filed an application with Securities and Exchange Board of India (SEBI) under the Right to Information Act (RTI) for details of the complete list of stock exchanges in India with a copy of their procedural guideline, policy, manual, rules, and regulation, etc.

The applicant mentioned that he had no proper source of income and should be considered as a person below poverty line (BPL) and information should be provided to him free of cost. In the reply, the public information officer (PIO) of SEBI asked the applicant to submit a proof of being BPL  against which the applicant approached the First Appellate Authority (FAA) reiterating his stand.

City Civil Court and a District Court judge take notice of earlier judgments, the FAA ruled that the appellant, being prisoner of the jail, is entitled to free information under RTI if considered as the person below the poverty line. The PIO was asked by FAA to provide the information about stock market including study material, free of cost to appellant. There is no necessity to have a certificate regarding income from the competent authority to treat prisoner below the poverty line in case of an under trial. [8]

Tihar prisoners file RTIs to get information

The prisoners’ headquarters, which houses senior officials who carry out administrative work, get two query every day on an average. More than 70 applications were received by them in the month of December 2017, in January 2018 it was 59. Prisoners are exempt from paying RTI applications. Those who are seeking information at Tihar jail is no shortage of help for them.

Information which is asked by the Prisoners:

• Why did we not get lemons this season?
• Are we entitled to two glasses of milk every morning?
• In how many days will I get released?
• Why are we not provided mosquito repellent?

Useful in knowing the decision taken by the government/public funded organization

RTI grant citizens legal right to access information held by their government and know about the functions of government. RTI gives right to know the reason behind any decision which is taken by the government. Over the last 6 years, the RTI has been used rapidly by ordinary citizens to demand information from the government.

Useful to expose abuse if power/authority, arbitrary, decision making etc

Whenever there is corruption in any decision which is taken by the government, to prove such deviation it is important to get all the information and RTI gives the right to the citizen to receive the information regarding the decision taken by the government.

The citizen can ask for:

• The copy of complete file related to the project.
• Copy of bills
• Copy of voucher
• Copy of tender document, etc.

It helps citizens to know about the document which is created and maintained by the government while taking various decisions.

Including the right to seek, receive, and impart information it provides all citizens right to freedom and expression and a guarantee now considered to include an obligation of openness on the part of the government.

Useful to know how the public funds are being utilised

On 6 September 2011, Krishan Lal, a resident of Mumbai asked information from Public Information Officer (PIO) regarding whether Public Health Foundation of India (PHFI) is a public authority under RTI Act or not:

• PHFI’s incorporation and registration documents, and legal status of PHFI.
• Details of funds received by the government on various projects.
• Details of capital expenses and funding pattern of meeting the capital expenses.
• Details regarding the cost of purchase of land for these institutions and copy of registration or certification of land.
• Details of consultancy assignment of various State Government or their agencies.
• Details of students sponsored by the state government or government of India.

PHFI claimed that it was not covered under the provision of RTI Act so there was no scope for the complainant to use the appeal procedure mentioned in the RTI Act, and under section 18 of RTI Act, the bench treated the matter as a complaint.

It was recognized by the Supreme Court of India that the right to information is a fundamental right of every citizen of India under Article 19(1) of the Constitution of India. This fundamental right was codified by RTI Act that every citizen shall have the right to information, subject only to the provision of the RTI Act.

Section 2 (h) of RTI Act defines public authority

Anybody or institution of self-government constituted or established:

• By or under the Constitution,
• By or other law made by Parliament,
• By or any other law made by State Legislature,
• By the notification issued or order made by the appropriate government, which includes:Body owned, controlled or substantially financed;
• • Any non-government organization, directly or indirectly by funds provided by the appropriate government. [9]

Transparency and Accountability

“Improving Transparency and Accountability in government through effective implementation of the Right to Information Act” it is the centrally sponsored scheme which was launched in August 2010. It aims to contribute more transparent and accountable government and aimed to achieve the following output:

1. RTI request is filed by the public. The component designed to achieve were:Awareness generation through mass media campaign
2. 1. Simplification of process for filing of RTI requests
   2. Appeals to central government authorities which includes a portal for the filing of RTI requests in GOI offices.
   3. Setting up of an institutional mechanism for collaborative working with CSOs and media.
   4. Consultation meeting of national RTI committee, RTI fellowship, etc.
3. Speed disposal of RTI request an appeal, and improvement in quality:Online certificate course on RTI, knowledge management, etc.
4. 1. Setting up of RTI sells in central public authority make the process fast of receipt, monitoring, and disposal of RTI request/appeal
   2. Improvement in record management.

In the current scenario, RTI is bringing up the transparency and accountability in India. On an average, every year 5 to 8 million RTI queries are filed.

RTI includes the following

• Adequate safeguards have been provided to officers autonomy and accountability can be balanced.
• The penalty for those who use measures for personal inter.
• Judiciary can restrict itself from crossing the boundaries.
• Providing monitoring mechanism for ensuring transparency in the program.
• Encouraging officers to take an honest decision in regard to the success.
• Bringing media under regulation through positive values.
• Defining standard operating procedure and code of conduct. [10]

RTI can challenge corruption and arbitrary action taken by public servant

RTI is a tool to fight against corruption. RTI empowers the people of India against administrative corruption, unresponsive attitude, and irregularities. Every citizen of India is empowered to question, review, audit, assess and examine the government decisions and acts to ensure that decisions are taken in public interest.

Though this corruption can be exposed and also bring light to those officials who are not doing their duties. Particularly in India the RTI has been seen as part of the anti-corruption. People can check any misappropriation and ask information about project and plans.

Information can be sought on the following

• Demand for the information related to the progress made on any complaint filed by a citizen.
• Demand for inspection of any social development work which is in progress or completed.
• Demand for inspecting a government document, register, and records.
• Demand for a sample of material used for construction, drains, and buildings.

Corruption and Human right violation

As per section 24 of the RTI Act, information pertaining to allegations of corruption and the human right violation is not exempt from disclosure and the information should specifically in relation to ongoing departmental victimization, which is a clear case of human rights violation and corruption. [11]

Case: Dr. Amitabh Kumar vs. Indo-Tibetan border police force, January 7, 2010

In the above case, it was held that it is the responsibility of any public authority to any correspondence let alone an RTI application even if the information is refused, providing information of such refusal. Officials will be liable to the penalty in accordance with section 20 (1) for obstructing any manner furnishing an information sought under the RTI Act. [12]

RTI is an instrument for stronger and vibrant democratic process in India

• RTI help people in making an informed choice.
• People have access to the decision-making process. For example: why a ration card is being unduly delayed
• Governance has to be an official conscious of the fact they are liable for omissions during their tenure.
• RTI is playing a critical role in systematic correction rather than limiting it to individual cases.
• RTI Act is a step towards ensuring a stronger and vibrant process in India. [13]

Important judicial pronouncement with reference to RTI

Judiciary has given the various aspects in order to understand the effectiveness of the fundamental right:

• Bennett Coleman v. Union of India

In the above case right to know was realized as a fundamental right for the very first time and consequently, the Supreme Court ruled that the right to freedom of speech and expression guaranteed by article 19 (1) (a) which includes the right to information.

• State of UP v. Raj Narain

In the above case, Supreme Court held that right to receive information from electronic media was included in the freedom of speech.

• People’s Union for Civil Liberties v. Union of India

In the above case, it was stated that the right to information was further elevated to the status of a human right which is necessary to make government accountable and transparent.

[14]

Object of the Act

The main object of the right to information act is:

• To make the fundamental right to information more effective.
• Set up system and mechanism which may help people to easy access.
• Transparency and accountability in governance.
• In public office minimize inefficiency and corruption.
• It promotes people to participate in governance and decision making.

Who can make the decision under RTI Act?

A minister is required to deal with an application unless they have conferred decision making authority by direction.

Decision making is a part of dealing with an application with a range of matter related to an application which includes:

• Process, resource, system, and structure to be appropriate to deal with an amendment application and access.
• Reasonably practicable steps should be considered to attain the view of relevant third party, they would concern about the decision to release information. [15]

Governance of RTI

Two major bodies governed RTI in India:

1. Central Information Commission (CIC): Chief information commissioner with their own public information officers directly under the President of India.
2. State Information Commissions (SIC): State public information officers directly under the State Governor.

Conclusion

Every citizen has right to know about the decision taken by their government. Right to information codifies the fundamental right of the citizen and no public authority can deny to provide information. It make public officials accountable and liable, nothing can be concealed from. RTI is useful in various ways and provide transparency in the system of the country.

References

[1] Right to Information Act, 2005

https://en.wikipedia.org/wiki/Right_to_Information_Act,_2005(Date of visit is 19/02/18 and the time of visit the site is 3:05 PM IST)

[2] Salient features of RTI

http://www.legaldesire.com/right-to-information-act-2005/(Date of visit is 19/02/18 and the time of visit the site is 4:00 PM IST)

[3] Good governance

https://www.legalindia.com/wp-content/uploads/2013/03/RTI.pdf(Date of visit is 19/02/18 and the time of visit the site is 5:15 PM IST)

[4] Prabhu Dutt v. Union of India

https://indiankanoon.org/doc/671310/(Date of visit is 19/02/18 and the time of visit the site is 6:00 PM IST)

[5] SP Gupta v. Union of India

https://indiankanoon.org/doc/1294854/(Date of visit is 20/02/18 and the time of visit the site is 10:05 AM IST)

[6] RTI for students

http://blog.onlinerti.com/2016/12/27/how-can-students-benefit-from-rti/(Date of visit is 20/02/18 and the time of visit the site is 12:05 PM IST)

[7] Gayatri Vishwakarma v. Union of India

https://indiankanoon.org/doc/85482914/(Date of visit is 20/02/18 and the time of visit the site is 3:00 PM IST)

[8] RTI for prisoners.

http://www.rtifoundationofindia.com/information-be-provided-free-under-trial-prisoner-3000#.Wo5Ls1pubIU(Date of visit is 20/02/18 and the time of visit the site is 6:05 PM IST)

[9] RTI to know how funds are being used by government.

https://www.moneylife.in/article/rti-judgement-series-a-body-substantially-funded-controlled-by-govt-is-a-public-authority/34621.html(Date of visit is 22/02/18 and the time of visit the site is 10:15 AM IST)

[10] RTI ensures more transparency and accountability.

http://dopt.gov.in/schemes/improving-transparency-and-accountability-government-through-effective-implementation-right(Date of visit is 22/02/18 and the time of visit the site is 12:05 PM IST)

[11] Corruption and arbitrary action can be challenged by RTI.

http://ijldai.thelawbrigade.com/wp-content/uploads/2018/01/Aparajita.pdf(Date of visit is 22/02/18 and the time of visit the site is 3:00 PM IST)

[12] Case: DR. Amitabh Kumar v. Indo-tibetan border police force.

https://indiankanoon.org/doc/181521976/(Date of visit is 22/02/18 and the time of visit the site is 4:15 PM IST)

[13] An instrument for stronger and vibrant democratic process.

https://indiankanoon.org/doc/181521976/(Date of visit is 22/02/18 and the time of visit the site is 4:45 PM IST)

[14] Judicial Pronouncement relating to RTI.

http://docs.manupatra.in/newsline/articles/Upload/AC9CD2C7-B8AD-4C5A-B910-3751BFE5CB28.pdf(Date of visit is 22/02/18 and the time of visit the site is 5:20 PM IST)

[15] Who can make the decision under RTI.

https://www.oic.qld.gov.au/guidelines/for-government/access-and-amendment/processing-applications/who-can-make-decisions-under-the-rti-act-and-the-ip-act(Date of visit is 22/02/18 and the time of visit the site is 6:15 PM IST)

The post How to make the best use of Right to Information appeared first on iPleaders.

This article is written by Utkarsh Jhingan. The article discusses the difference between the two frequently used terms in business law jurisprudence, Corporate Social Responsibility and Corporate Citizenship.

Corporate Citizenship

In the 1980’s a new term entered the glossary to describe the business-society relationship. ‘Corporate Citizenship’ now appears frequently in the business and academic literature. Corporate citizenship is defined as the way a company exercises its rights, obligations, privileges and overall corporate responsibility within the neighbouring and global environment. There has been some disagreement about the terminology: some writers view corporate citizenship and corporate social responsibility as synonymous.[1] On the contrary, some writers argue that corporate citizenship focuses more on internal organizational values.[2] The advocates of corporate citizenship claim it can bridge the theory-practice divide that characterizes much of the research on corporate social responsibility.[3] Most of the corporations publicize about their efforts towards to corporate citizenship so that they can create a goodwill in the market.

What is the complication?

Attempts to distinguish between corporate citizen and CSR has ended up only defining corporate citizenship essentially having the same features of CSR i.e. economic, ethical, legal, philanthropic responsibilities.[4] Corporate citizenship can be divided into two, a good and bad citizen. Bad corporate citizens like tobacco companies, weapons manufacturers are excluded from socially responsible investment funds. There have been arguments that the refurbished academic focus on corporate citizenship is an opportunity to reposition the older ideas about CSR.[5] Corporate citizenship is limited and specific and its focus on local community welfare and philanthropy and it is necessary to envision global business citizenship to bring back the issues of duty and responsibility.[6]

The applicability of CSR in America and Europe had been questionable and there was a need to bring uniformity in the responsibilities of business. The notion of a global business citizen was particularly relevant for multinational corporations. Multinational corporations are both local and global actors whose rights and responsibilities across national boundaries implied an analysis of hyper norms.[7] The U.N. Global Compact where multinational corporations voluntarily commit to a set of principles in the areas of environment, labour and human rights values and principles which gives a human face to the global market and aspire to overcome imbalances between the economic, social, and political realms.[8]

Corporate Social Responsibility and Corporate Citizenship

The main elements of corporate citizenship are not very different from the concept of CSR i.e., legal requirements, societal obligations, voluntary actions, values and ethics are integrated along with a stakeholder view of the firm although environmental responsibility which the key theme of CSR and sustainability are missing. The issues of implementing a consistent set of universal hyper norms seem to be glossed in the literature.

A multinational corporation must be seen to be insightful to local cultures. At the same time it is required to implement a universal code of conduct, the assumption being that the company can adapt its hyper norms to suit local custom without violating them.[9] It is still not clear how this strategy will address the issue of environmental and social problems. A good corporate citizen is obliged to fulfil the obligations but it is not legally enforced. The major shortcoming of CSR, corporate citizenship is that there is an absence of any enforcement mechanism to meet the obligations. At a global level, the complexities of legal systems also enable multinational corporations to develop innovative and creative accounting practices that, while being perfectly legal, have uncertain outcome.

The problematic nature of citizenship, when applied to corporations, need to be looked into. The use of the term citizen to denote corporate identity is related to the legal notion of the corporation as a natural citizen. The rights of the corporation are guaranteed and protected but the problem is that the responsibilities remain unrestricted. The term corporate citizen extends the legal fiction of corporate personhood even further because a corporation cannot satisfy key cannons of citizenship such as voting or holding public office, which are inalienable rights held by individuals.[10] Corporate citizenship also does not provide a critical analysis of power dynamics between individuals, groups and corporations. Citizenship rights of corporations are limited to certain activities like the right to vote furthermore the economic power of corporations to influence electoral results through campaign contributions cannot be ignored.

There have been notions of corporate citizenship that bring in the legal fiction argument of the corporation in order to create a soul for the body corporate run the danger of conflating citizenship with personhood. A corporation cannot be a citizen in the same way a person can. A corporation can be considered a person as far as its legal status is concerned. The conflation of a corporation with an individual citizen obscures the gaps between individual citizen rights and corporate rights. There are concerns that corporate citizenship discourses could have the effect of reducing governmental scrutiny of corporate practices because they promote self-governance. Corporate strategies of responding to social and environmental concerns have led to array of codes of conduct on various issues which are not enforceable.

So to conclude rather than uncritically applying concepts of citizenship to the business firm, it is important to contest current notions of corporate citizenship. The limitations of applying superficial concept of citizenship to corporations attempt to develop a broader conceptualization of corporate citizenship based on notions of liberal citizenship in political science.[11] Corporate citizenship becomes relevant in an era dominated by neoliberal doctrine because, while corporations may not be the same as individual citizens, they are taking the roles and activities normally associated with the government.[12] When the state is not the sole guarantor of citizenship rights and corporations provide services that were previously the purview of governments then it becomes necessary to interrogate corporate roles in administering citizenship. Thus corporate citizenship is about administering citizenship rights for individuals rather than about whether the corporation is or can be a citizen.

References

[1] Swanson Diane and Niehoff Brian P. (2001), “Business Citizenship outside and inside organisations”.

[2] David Birch (2002), “Corporate Citizenship in Australia: Some Ups, Some Downs”.

[3] Subhabrata B. Banerjee, (2001), “ Corporate Social Responsibility : the good, the bad and the ugly”.

[4] ArchieB.Caroll (1998), “The Four Faces of Corporate Citizenship”.

[5] Dirk Matten. Andrew Crane (2005), “Corporate Citizenship: Toward an extended theoretical conceptualization”.

[6] Natasha Vijay Munsh (2004), “Conversations on Business Citizenship”.

[7] Wood and Logsdon (2001), “Global Business Citizenship and Voluntary Codes of Ethical Conduct”.

[8] Annan (2000), “Executive Summary and Conclusion, High Level Meeting in the Global Compact”.

[9] Natasha Vijay Munsh (2004), “Conversations on Business Citizenship”.

[10] Subhabrata B. Banerjee, (2001), “ Corporate Social Responsibility : The Good, The Bad and The Ugly”.

[11] Matten and Crane (2005), Corporate Citizenship: Toward an Extended Theoretical Conceptualization.

[12] Hertz (2001), “Better to  Shop than to Vote”.

The post Corporate Social Responsibility and Corporate Citizenship – Analyzing the difference appeared first on iPleaders.

In this article, Aditya Rajagopal analyses the aspect of Further Issue of Share capital under the Companies Act.

Introduction

In some situations, a company would consider it economically viable to increase its subscribed capital after its incorporation. This is because such a further issue would substantially increase its financial reserve and incentivize the shareholders of the company, thereby ensuring the healthy functioning of the company. Such a company which is desirous of increasing its subscribed capital by the further issue of shares is required to comply with the procedure laid down in section 62 of the Companies Act, 2013. This section encapsulates a scenario wherein the authorized capital of the company is not exhausted and the further allotment of shares is made out of the unsubscribed portion of the capital.[1] In this paper, I shall discuss the various dimensions of this section by analyzing the judicial pronouncements of the court over the years.

Scope

The scope of this project is to analyze the aspect of further issue of shares in relation to the provisions of the Companies Act, 1956 and Companies Act, 2013. I would specifically focus on the aspects relating to the pre-emptive rights of the existing shareholders, the duty of the directors in such further issue and the ambit of the right of renunciation available to the shareholders. While engaging in these aspects, I would analyze the effect or the impact of the amendments and changes introduced in the Companies Act, 2013. In addition, I would also point out various contentious situations which might arise when the company is engaging in a further issue of shares for which the Companies Act does not provide a solution or recourse and is silent regarding the same.

Research Questions

In accordance with the scope of this project, I would like to address the following questions

1. Whether the new stock of shares can be given to an outsider without offering the existing shareholders?
2. What is the extent of the shareholder’s interference when the Board of Directors have engaged in the further issue of shares?
3. What are the duties of the director while engaging in the further issue of shares?

Chapters

In this section of the paper, I would strive to answer the research question as provided earlier and deal with additional aspects as well. While engaging in the same, I would trace the legislative history and analyze the judicial trend on the specific aspects of rights issue of shares.

Rights of the existing shareholders at the time of further issue of shares

The inherent right of the existing shareholders to the new shares of the company has extensive judicial backing in India and other jurisdictions as well. The earliest well recognized judicial pronouncement which laid down the same was the New York Court of Appeals decision of Stokes v. Continental Trust Co.[2] In this case, the court held that the firm which is a mere trustee for all the shareholders has no right to dispose of the new stock without offering it to the existing shareholders. The same principle has been recognized in other jurisdictions as well, such as the United Kingdom which explicitly mentions about the pre-emptive right of the existing shareholders in its Companies Act.[3]

In India, the companies act has always found mention regarding the presumptive right of the existing shareholders to the new shares of the company. Section 105C of the Companies Act, 1936 had explicit mention relating to the presumptive right of the existing shareholders. The Supreme Court while dealing with this provision in the landmark case of Nanalal Zaver v. Bombay Life Assurance Co. Ltd[4]  laid down that the company must give the first option to the existing shareholders before favouring anyone else. The Companies Act, 1956 and the Companies Act, 2013 also explicitly provides for a preemptive right of the shareholders to the new shares of the company. The Supreme Court also recently in the landmark case of Sahara India Real Estate Corporation v. SEBI[5] held that Section 81 postulates a preemptive right on the part of the existing shareholders to the new issue of shares. Thus, it is evident that a company which engages in the further issue of shares should offer it to its existing shareholders before favouring anyone else. This is a recognized principle in India and other jurisdictions as well.

This principle is in existence to ensure that the shareholder is not unfairly treated. If new shares are issued without offering them to the existing shareholders in proportion to their existing holding, then their share of control over the company would substantially reduce.[6] Further, the existence of pre-emptive rights acts as a serious check on the directors’ discretion to issue further shares.[7] In addition, not granting a pre-emptive right would result in an inequitable treatment of the existing shareholders. This is because the additional shares which are issued at a lower price would facilitate outsiders into the company in an extremely flexible manner but on the other hand, existing shareholders who paid a higher price to acquire shares would stand to lose unfairly.[8] Thus, the existence of pre-emptive rights ensures the well-being of the existing shareholders as there is no financial dilution.[9] However, this pre-emptive right is available only for a maximum of 30 days within which the existing shareholder must express his interest.[10]

The legislature has made some changes in relation to the aspect of the further issue of shares in the Companies Act, 2013. Under Companies Act, 1956 a company is obligated to follow the procedure prescribed in Section 81 (including preemptive rights of the existing shareholders) only if the company has been in existence for two years (or) at “any time after the expiry of one year of the allotment of shares”. Thus, a company could flout the well-laid out procedure prescribed in Section 81 of the Companies Act, 1956 if it allotted shares within two years of its formation. This would include a situation wherein a company could disregard the preemptive rights of the shareholders if it allotted shares within two years of its formation. The Legislature realizing the loophole has modified the section and it now obligates any company who issues further shares at “any time” to be within the ambit of Section 62 of the Companies Act, 2013. This, according to me is a great step to ensure complete compliance with the procedure prescribed in the act.

Further, unlike the erstwhile companies act of 1956, Section 62 of the Companies Act, 2013 applies to private companies as well. This change of scope in the Companies Act in relation to this aspect is a welcome move since the existence of pre-emptive rights of the existing shareholders would ensure that the membership is limited and that control remains within the framework of the existing shareholders. The scope of interference of the shareholders in the director’s discretion of further issue of shares will be dealt with in the subsequent section of the paper.

Scope of Interference of the shareholders in the Director’s decision of further issue of shares

Even though the existing shareholders possess a pre-emptive right to the new shares, the extent of their interference in the further issue of shares will be analyzed in this section of the paper. A shareholder can interfere in the director’s exercise of discretion only in special or exceptional situations. This aspect was considered by the court in the case of Sri Hari Rao v. Gopal Automotive Ltd.[11] In this case, the court held that there was sufficient evidence available for the director to engage in the further issue of shares.[12] Therefore, they held that they could not restrain the company from issuing further shares for the mere reason that the minority shareholder is unwilling to subscribe to the additional capital.[13]

This similar aspect was considered by the court in the case of Chandrakant Mulraj v. Tata Engineering and Locomotive Co Ltd.[14] In this case, the court laid down that the reduction in the market value of the shares is not a sufficient reason for restraining the company from the further issue of shares.[15] This is because such a measure was undertaken keeping in view the interests of the company. Thus, it is clear that the scope of interference of the shareholders in the director’s decision is extremely narrow and only in special or exceptional situations. The exceptional situations which warrant such interference will be dealt with in the next section of the paper which is in relation to the director’s duties while engaging in the further issue.

Fiduciary duty of the directors while issuing further shares

The Companies Act, 1936 had explicit mention regarding the power of the director to issue further shares of a company.[16] In the later statutes which followed the Companies Act, 1936 there was no explicit mention regarding the power of the directors to issue further shares. Nevertheless, it is the board of directors of a company who are vested with the intrinsic right to issue further shares.[17] The manner of exercise of such right has been a bone of contention in various situations. In India, such a situation was dealt with by the Supreme Court in the landmark case of Nanalal Zaver v. Bombay Life Assurance Co.Ltd.[18] In this case, the appellants contended that the director’s exercise of discretion in issuing further shares was male fide in nature as it was done to gain control of the company.[19] The Court, while dealing with this contention held that since the directors exercised their discretion in a bona fide manner for the best interests of the company, mere incidental benefits to the directors would not warrant interference in the further issue of shares.[20]

The same aspect relating to the manner of exercise of the director’s discretion was dealt by the Supreme Court in the case of Needle Industries (India Ltd) v. Needle Industries Newey (India) Holding Ltd.[21] In this case, the Court did not restrain the acts of the director since he not only acted in a bona fide manner for the benefit of the company but also acted without any motive to promote his own cause.[22] The Court also held that the exercise of director’s discretion would be for an improper motive if it is solely done for their own benefit.[23] Thus, it is apparent that the court added another standard (Proper Purpose) apart from the requirement of the director to act in a bona fide manner. The requirement of a proper purpose before the further issue of shares was first postulated in the landmark case of Hogg v. Cramphorn Ltd.[24] In this case, the court interfered in the further issue of shares even though they felt that he acted for the interests of the company, since he acted with the improper motive to control a greater share of the company.[25] The same principle was reiterated with greater force in the case of Clemens v. Clemens Bros Ltd.[26] In this case, the court held that the director was acting in breach of its fiduciary duty since the further issue was done for the sole motive to squeeze out the majority shareholders. The additional principle of proper purpose along with the bona fide requirement was thereafter applied extensively in India as well.

The landmark case which applied the said modified principle (proper purpose + bone fide requirement) was the Supreme Court decision of Dale and Carrington Invt. (P) Ltd and Anr v. P.K Prathappan and Ors.[27] In this case, the Court invalidated the director’s further issue since he was neither able to prove that such issue was for the benefit of the company nor was he able to prove that he was acting in a bona fide manner since his motive was to gain control of the company.[28] The same principle was enunciated by the Supreme Court in the subsequent case of Shri V.S Krishnan and Ors v. Westford Hi-Tech Hospital Ltd and Ors.[29] Thus, it is clear from the judicial pronouncements of the court that the standard for analyzing the manner of exercise of the director’s discretion has shifted from a mere bona fide requirement to a modified principle of bona fide + proper purpose. This, according to me is the right standard for scrutinizing the discretion of the director in the further issue of shares. This is because the Companies Act does not provide any guidance on the aspect of the director’s discretion in issuing further shares. Thus, by adopting the modified principle, the possibility of a director exercising his discretion in an irregular manner is minimized to the maximum extent possible.

Conclusion

In this paper, I have first analyzed on the aspect relating to the preemptive rights of the existing shareholders in the further issue of shares. In the next part of my paper, I have analyzed the extent of the shareholder’s interference in the further issue of the shares. After analyzing both these aspects, I have come to a conclusion that even though the existing shareholders have a preemptive right to the new stock of shares, the scope of such interference in the director’s discretion is limited. It is only in exceptional situations where the further issue of shares is restrained. On the aspect of the fiduciary duties of the director, even though there is no mention of the same in the companies act, judicial pronouncements of the court indicate that the director is required to act in a bona fide manner with a proper purpose. These are some of the aspects of the Companies Act regarding the aspect of further issue of shares under the Companies Act.

[1] A. Ramaiya, Guide to the Companies Act, 1164 (18^th ed., 2014). Also, the change in authorized share capital shall take place as per Section 61 of the Companies Act, 2013.

[2] Stokes v. Continental Trust Co., 186 NY 285, 299 (1908, Court of Appeals, New York).

[3] S. 561, Companies Act 2006 (United Kingdom).

[4] Nanalal Zaver v. Bombay Life Assurance Co. Ltd, AIR 1950 SC 172.

[5] Sahara India Real Estate Corporation v. SEBI, (2013) 1 SCC 1.

[6] Gower and Davies, Principles of Modern Company Law, 632 (7^th ed., 2003)

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] Sec. 62(a)(i), Companies Act, 2013.

[11] Sri Hari Rao v. Gopal Automotive Ltd, (1999) 96 Com Cases 493.

[12] Ibid at ¶29.

[13] Ibid.

[14] Chandrakant Mulraj v. Tata Engineering and Locomotive Co. Ltd, (1985) 58 Com Cases 320 (Bom).

[15] Ibid at ¶6,7,8.

[16] S.105(C), Companies Act, 1936.

[17] Supra 1 at 1167; Avtar Singh, Company Law, 231 (16^th ed., 2015).

[18] Supra 4.

[19] Ibid at ¶2.

[20] Ibid at ¶25.

[21] Needle Industries (India) Ltd v. Needle Industries Newey (India) Holding Ltd, AIR 1981 SC 1298.

[22] Ibid at ¶116.

[23] Ibid at ¶111.

[24] Hogg v. Cramphorn Ltd, 3 All ER 420 (1966, Chancery Division).

[25] Ibid.

[26] Clemens v. Clemens Bros Ltd, 2 All ER 268 (1976, Chancery Division).

[27] Dale and Carrington Invt. (P) Ltd and Anr v. P.K Prathappan and Ors, AIR 2005 SC 1624.

[28] Ibid at ¶29.

[29] Shri V.S Krishnan and Ors v. Westford Hi-Tech Hospital Ltd and Ors, (2008) 3 SCC 363.

The post Analyzing the aspect of Further Issue of Share Capital under the Companies Act appeared first on iPleaders.

The Law Blog (TLB), is pleased to announce two-month long Internship-cum-certificate Programme for law students and legal professionals from across the globe.

The internship will require legal writing, and therefore is recommended for law students only. However, students from other branches also may apply for the same and will be considered after following the due process.

NATURE OF THE PROGRAMME

As for the certificate programme, the title thereof is ‘Writing for a change’ which is an online certificate programme on Blogging for Social Development. The certificate programme will be focusing on the learner’s ability to blog effectively and use the online opportunities towards her/his professional development as well as contribute to the social development as a whole.

Towards the completion of the certificate programme, the interns will be provided with the course material on a regular basis on the basis of which they’ll be facing an online test and also perform required tasks.

As for the internship part, the interns are expected to submit at least one article (around 500-1000 words) per week on any topic relating to law, the deadline being Friday evening for each week. Regarding the topic of the article, anything relating to law will be acceptable.

Kindly note that the certificate programme under this programme is completely free of cost!

Further details will be provided to the applicants after they have been selected for the ‘Writing for Change’ Programme.

BENEFITS

• Certification

Subject to successful completion and timely submission, the interns will be awarded e-certificates for the following:

1. ‘Writer for change’
2. Internship Certificate
3. Letter of Recommendation

• Recognition

While posting the article on the website, due credit will be given to the respective authors. Authors of respective articles are featured on the website along with their short bio.

• An enriching experience

We assure the interns a highly enriching experience while interning with us. Along with working for spreading legal awareness, we’ll also work together on improving your writing skills, in a cooperative setup.

• Critical appraisal

The write-ups of the interns will be critically evaluated and the interns will be provided with positive appraisal as well as suggestions to further improve their writing skills.

HOW TO APPLY

So, if you have finally decided to apply for the Internship-cum-certificate Programme, kindly click on the link below, and fill up the Google form therein. Thereafter, we’ll contact you shortly.

Application form here!

For any queries, drop a WhatsApp text message to +91 7895 194740. 

The post Call for Applications – Writing For A Change – Online internship-cum-certification programme appeared first on iPleaders.

This article is written by Nilesh Javker. The article discusses the Revised Framework on Resolution of Stressed Assets dated February 12, 2018, of Reserve Bank of India.

The Reserve Bank of India (RBI) vide its notification bearing ref. no. DBR.No.BP.BC.101/21.04.048/2017-18 dated February 12, 2018 (“Revised Framework“) brought into effect a new framework with a view to early identification and resolution of stressed assets (i.e. non-performing assets accounts) in harmonisation with the principles of Insolvency and Bankruptcy Code, 2016 (IBC).

The extant instructions on resolution of stressed assets such as Framework for Revitalising Distressed Assets, Corporate Debt Restructuring Scheme, Flexible Structuring of Existing Long Term Project Loans, Strategic Debt Restructuring Scheme (SDR), Change in Ownership outside SDR, and Scheme for Sustainable Structuring of Stressed Assets (S4A) stand withdrawn with immediate effect. Accordingly, the Joint Lenders’ Forum as an institutional mechanism for resolution of stressed accounts also stands discontinued. All accounts, including such accounts where any of the schemes have been invoked but not yet implemented, shall be governed by the Revised Framework.

Some important definitions under the Revised Framework

1. Default has been defined as non-payment of debt when whole or any part or installment of the amount of debt has become due and payable and is not repaid by the debtor or the corporate debtor, as the case may be. For revolving facilities like cash credit, default would also mean, without prejudice to the above, the outstanding balance remaining continuously in excess of the sanctioned limit or drawing power, whichever is lower, for more than 30 days.

2. Aggregate Exposure under the Revised Framework would include all fund based and non-fund based exposure with the lenders.

3. ‘Restructuring’ is defined as an act in which a lender, for economic or legal reasons relating to the borrower’s financial difficulty (An illustrative non-exhaustive list of indicators of financial difficulty are given in the Appendix to Annex-I of the Revised Framework), grants concessions to the borrower. Restructuring would normally involve modification of terms of the advances / securities, which may include, among others, alteration of repayment period / repayable amount / the amount of installments / rate of interest; roll over of credit facilities; sanction of additional credit facility; enhancement of existing credit limits; and, compromise settlements where time for payment of settlement amount exceeds three months.

4. ‘Specified Period’ means the period from the date of implementation of RP up to the date by which at least 20 percent of the outstanding principal debt as per the RP and interest capitalisation sanctioned as part of the restructuring, if any, is repaid. Provided that the Specified Period cannot end before one year from the commencement of the first payment of interest or principal (whichever is later) on the credit facility with longest period of moratorium under the terms of RP.

Early identification of stress through stringent reporting requirements

Applicability: All borrower entities having Aggregate Exposure (i.e. including fund based and non-fund based) of Rs. 50.00 million and above.

Reporting of Credit information

The lenders shall now report credit information, including classification of Special Mention Accounts to Central Repository of Information on Large Credits [CRILC] on monthly basis effective April 01, 2018.

Reporting of Default

For reporting of Default, the lenders shall now report to CRILC on a weekly basis, at the close of business on every Friday or the preceding working day if Friday happens to be a holiday.

Implementation of Resolution Plan (RP)

The Revised Framework, in order to prevent default of borrower entities turn into non-performing assets, has mandated the lenders to put in place Board-approved policies for resolution of stressed assets under this framework, including timelines of resolution as specified in Clause D of the Revised Framework.

The lenders are mandated to refer borrower entities for resolution under IBC if –

1. The RP could not be implemented as per the timelines, then after the expiry of 15 days of such timelines; and
2. If the borrower entity defaults during the Specified Period of RP, then within 15 days from the date of such default.

Such a resolution can be proposed either singly or jointly by the lenders which mean that even in case of default of one single lender; other lenders can join such lender for resolution of the stressed asset. This also substantiates cross default rights that are obtained by the lenders under their loan agreements.

The Revised Framework has described RP as any action / plans / reorganization including, any actions / plans / reorganization including, but not limited to, regularization of the account by payment of all over dues by the borrower entity, sale of the exposures to other entities / investors, change in ownership, or Restructuring.

Author’s Observations

The RP does not include option of conversion of debt into equity which hitherto was made available to the lenders under SDR and S4A. Does this mean under the Revised Framework, lenders will not be allowed to convert their debt into equity or the RBI does not envisage conversion of debt into equity as a viable option for Restructuring of stressed assets?

Default of Borrower Entities with Aggregate Exposure less than Rs. 100.00 Crore

Clause D of the Revised Framework prescribes timelines for reference dates of borrower entities having Aggregate Exposure at Rs. 2000.00 Crore and above for implementation of RP.

In respect of borrower entities with Aggregate Exposure of Rs. 100.00 Crore and above to less than Rs. 2000.00 Crore, RBI will announce reference dates for implementation of RP over a two year period.

Author’s Observations

The Revised Framework does not explain how the lenders should deal with accounts having Aggregate Exposure less than Rs. 100.00 Crore nor does it specify any RP for borrower entities having Aggregate Exposure of less than Rs. 100.00 Crore. But that does not exclude stressed assets of less than Rs. 100.00 Crore from Revised Framework. This does not seem to be the intention of the drafters of the Revised Framework. Does this mean that the lenders have the liberty to resolve the stressed assets of less than Rs. 100.00 Crore on their own including write off, one time settlement of such accounts or other recourse available to them under the extant laws?

The post Revised Framework on Resolution of Stressed Assets dated February 12, 2018 of Reserve Bank of India appeared first on iPleaders.

The post Sheetal Aarey, 4th year Symbiosis student, on her experience of doing commercial contract drafting and negotiation course from LawSikho.com appeared first on iPleaders.

This article is written by Aditya Shrivastava, marketing executive at iPleaders.

Do you know that your favorite Starbucks is a joint venture with Tata Global Beverages?

Did you know McDonald’s was running a joint venture between Connaught Plaza Restaurants Ltd? Have you ever wondered what went wrong between these two companies that it had to shut its shop at nearly 170 outlets? What could have been done to avoid it?

Do you know Tata Sons Ltd. and Singapore Airlines (SIA) are parents to the joint venture Vistara?

Do you know in the last decade joint ventures have grown twice the rate of M&A deals?

Do you know entering a joint venture is the most preferred way for a foreign company to enter Indian market?

If you don’t know the above facts or what a joint venture is, you need to read further.

Joint Ventures can be an interesting area for the law students, budding lawyers and in-house counsels to explore. A joint venture is a business arrangement in which two or more parties agree to pool their resources for the purpose of accomplishing a specific task. An interesting fact about joint ventures is they are less complicated than corporate restructuring, or partnership arrangements, however, have roughly the same benefits.

Water Street Partner’s research on joint ventures has consistently shown that at least half of the Joint Ventures fail among other sobering statistics.  Apart from the regular market challenges, most of the joint ventures fail because of their unique ownership structure or because of a vague or incompetent agreement. It continues to remain one lesser explored area by lawyers and thus the need for expertise in this area is at an all-time high.

Despite all the odds, a report by Forbes is indicative of the fact that since 1995-2015 the overall value of joint ventures grew 20% annually which is twice the rate of M&A deals. In a global survey of 253 companies who use joint ventures to spur growth or optimize the product mix, 80% of the participants confessed that the venture met its targets or exceeded the expectations.

So, what is it that these 80% entities are doing right?

If the experts are to be believed, there needs to be a right foundation in place even before the deal is signed. If the agreement is extensive and well drafted, more than half of the risks are mitigated. The rest depends on strategy, ways of working out a joint venture and ending deal at the right time in the right way.

Keeping in mind the commercial goals that a joint venture can accomplish and the critical role a joint venture deal plays in the process, LawSikho presents a one-day immersive “Workshop on Joint Venture Contracts” on the March 17th, 2018. This workshop is aimed at helping the law students, practicing advocates and in-house counsels alike to understand the various complexities involved in joint venture structures and contribute this knowledge to real life transactions.

About The Workshop

This workshop is aimed at enabling the participants with a vision to effectuate any joint venture deals and provide a detailed overview of the joint venture contracts.  The workshop is designed to take you through the deal structures, documentation, decision-making and dispute resolution phases in a joint venture deal. After participation, you will be comfortably able to understand the different joint venture structures and use it effectively in a real-life opportunity.

Workshop Overview

The workshop is designed in a way to cover every crucial aspect related to any joint venture contract. The course of this workshop is largely spread over the following topics :

• Types of joint venture structures
• How to express obligations and benefits for parties
• Clause by clause analysis of a joint venture agreement
• Legal framework to consider when you conceptualize a joint venture (e.g. FDI, competition law, etc.)
• Most heavily negotiated clauses
• Where do disputes most commonly arise?

Practical Exercises

Apart from these, we at LawSikho believe that no knowledge is complete unless it can be used in the practical situations. Keeping this fundamental mission in mind, following exercises are designed :

1. Review and mark-up a joint venture agreement/ identify missing clauses, with live coaching
2. Prepare a requisition list for capturing commercials for a joint venture agreement from your client

Workshop Mentor

We are committed to providing you with the best in the industry and this workshop is no exception. The sessions will be led by Mr. Bhumesh Verma, Founder & Managing Partner at Corp. Comm Legal. Earlier, he was a partner at corporate and regulatory practice team of Link Legal India Law Services, New Delhi. He began his career at Ajay Bahl & Co. (now part of AZB & Partners) and went on to become a partner at Khaitan & Co and PKA Advocates before joining Link Legal. Mr. Verma has 22 years of experience in domestic as well as international corporate and commercial matters. Apart from all his medals and accolades, he is also the author of the renowned book – Drafting of Commercial Agreements.

Important Details (FAQs)

When is it happening?

17th March 2018 (Saturday)

What are the timings?

11 : 00 am – 06 : 00 pm

Where can I come to be a part of this opportunity?

iPleaders Delhi Office

33A, Mehrauli Badarpur Road,

Saidulajab, (Around 100m walk from Saket Metro Station (Saidulajab Exit) on the main road)

New Delhi – 110030.

Landmarks: Next to Lingaya’s Building / Red Onion Restaurant Near Saket

Is there any cap on the number of participants?

Yes, we just have 30 seats available. The sooner you register, the better.

What is the last date for registration?

The last day for registration is 15th March 2018.

Is there any fee for the workshop?

We are charging you a nominal fee of INR 1800 for this intense experience.

Where can I register?

To register click here.

In case you have any questions, feel free to call us at 011-33138901 or write to lawsikhosupport@ipleaders.in.

The post LawSikho’s Workshop on Joint Venture Contracts on March 17th, 2018 at Delhi; Register By 15th March appeared first on iPleaders.

In this article, Sudarshna Thapa of Law College Dehradun, Uttaranchal University discusses the Law governing comparative advertisements in India.

Introduction

Every Company wants to promote their products, services, and brands in different styles. Advertising is the most crucial step in determining product’s future prospects. It is the most advantageous way to catch the attention of the consumers in the market. Speaking legally, there are multiple players in the market focusing on increasing their advertisements and many times in order to gain attention and pecuniary gain they use some tactics which land them in trouble. Comparative advertisements is one such unfair trade practice.

Comparative Advertisements

Comparative Advertisements means such practice where one goods or services is compared with another belonging to one of the same field , speaking legally through an advertisement. The comparison is made on the basis of price, quality by referring the alternative brand’s name, visual illustrations, and other distinctive attributes. This type of advertisements is mostly more attention-grabbing and have high rate than non-comparative advertisements. Such type of advertisements creates confusion in the mind of consumers. It mainly affects the goodwill and reputation of the competitors whose products are comparing in such a manner.

Reckitt & Colman v. Kiwi TTK[1]

The Delhi High Court stated that an advertiser can compare his goods by stating it better than the goods of the competitor but he cannot state the competitor’s goods as bad, this would amounts to defamation. Court has the power to grant an injunction in this regard.

Conditions

Comparative Advertising shall be permitted when the following conditions are met

1. It should not misleading.
2. There is a comparison between the goods and services which is for same needs and the same purpose.
3. It compares those goods and services where there are relevant features, which may include price.
4. It does not create any confusion in the market between the advertiser and a competitor or between the advertiser’s trademarks, trade names, other distinguishing marks, goods or services and those of a competitor.
5. In the reputation of trademarks of a competitor, there is no unfair advantage.

Classification of Comparative Advertisements

• Direct Comparative Advertising: This type of advertisement deals with the competing products either are explicitly named or can be precisely identified (by photos, images or trademark).
• Indirect Comparative Advertising:It does not directly refer to competing brand names.

Objectives of Comparative Advertisements

There are some objectives behind the comparative advertisements:

• Evaluation of brand performance,
• To degrade the competitor’s brand on the basis of value proposition the competitive brand is offering,
• To increase consumer’s information about alternative brands.
• To convince the users of competing brands to switch to the sponsored brand.

Categories

There are following categories of Comparative Advertisements:

1. These types of advertisements are done to declare that they are better than others in the market with or without referring to any other particular competing products.
2. Advertising confers that they are better than other particular class or categories of products.
3. Advertisement asserting the measurable features of the products or services to make an objective comparison.
4. Advertisements referring to the competitor’s product with a blurred trademark.
5. It directs claims that they are better than any single products/ competitor.

Role of Communication in advertising

To increase the strategy of advertising, communication plays a vital role. With the help of print media (newspapers, articles, journals, etc.), audio-visual media (television, internet, movies, etc.), or audio (FM/AM radio), an advertisement can reach to a customer.

Statutory Provisions in India

MRTP Act

The Monopolies and Restrictive Trade Practices Act was enacted to prevent monopolies and restrictive trade practices in the economy. Under the MRTP Act, any representation which gives false information or disparages the goods and services of other person is considered as unfair practices in comparative advertisements. Matters relating to untrue and misleading advertisements were adjudicated upon by the MRTP Commission, constituted under the Monopolies and Restrictive Trade Practices Act, 1969. Section 36A of MRTP Act, 1969 listed with ‘Unfair Trade Practices’.

MRTP Act deals with only three aspects of the market:

1. Monopolistic
2. Restrictive
3. Unfair Trade Practices

Unfair Trade Practices: This practice adopts an unfair method, unfair or deceptive practices for promoting the sales of goods and services. Following are the practices which make it unfair:

1. Provide false information or facts about goods and services.
2. Unfair practices of making any statement, whether orally or in writing or by visible representation.

However, MRTP Act was repealed by section 66 of the Competition Act, 2002. The provision on unfair trade practices had a life for two years under the MRTP Act. A consumer needs protection not only from defective goods and deficient services but also from unfair trade practices. The provisions on unfair trade practices were copied from the MRTP Act into the Consumer Protection Act.The definition of ‘Unfair trade practices’ was incorporated under section 2(1)(r) of the Consumer Protection Act, 1986.

1. Balasundaram v. Jyothi Laboratories[2]

An advertisement of Ujala blue showed that 2-3 drops were sufficient to bring striking whiteness of clothes while several spoons of other brands were required but no label of any brand was shown. In the advertisement, a lady holding a bottle of Ujala was looking down on other bottle and exclaiming, chi, chi, chi! in a disgusting manner. The manufacturer of Regaul, a competing brand, approached the MRTP Commission that the advertisement was disparaging its goods. The Commission was of the view that mere claim to superiority in the quality of one’s product by itself is not sufficient to attract section 36(1)(x) of the MRTP Act. The Commission was of the opinion that it could not be a case of disparagement of goods.

New Pepsodent v. Colgate

Hindustan lever ltd. advertised it’s toothpaste, ‘New Pepsodent’ claiming that it’s toothpaste i.e., ‘New Pepsodent’ is better than the leading toothpaste. The Commission was of the view that the word toothpaste has become synonymous with Colgate over the years. In addition, the Commission noted that the jingle in the background was a familiar one. Thus, it was a case of comparative advertisement where a claim could be made of disparagement of Colgate’s product.

Use of Trademark in Comparative Advertisements

Trademark Act, 1999 is enacted to guarantee protection to national and international brand owners, in conformity with the TRIPS Agreement. It regulates Unfair Trade Practices in comparative advertising and prevents trademark infringement in India.

To identify the products and services, the holder of a trademark has the exclusive rights. Sometimes these exclusive rights can be used in comparative advertisements. A registered trademark is infringed by a person if he exploits such registered trademark, as his trade name or part of his trade name, or the name of his business concern dealing in goods or services in respect of which trademark is registered. Trademark Act has made the grounds for such infringement. Section 29(8) and 30(1) deals with comparative advertisements.

Section 29(8) of the Act outlines the situations in which there is the use of another’s trademark in advertising which amounts to infringement. It is considered to be the unification of laws of unfair competition and unfair trade practices that have set considerations for the use of trademarks in comparative advertisements.[3] According to this section, a registered trademark is infringed where an advertisement:

1. Is harmful to the trademark’s reputation,
2. Is destructive to the trademark’s distinctive character,
3. Takes unfair advantage or considered to be contrary to honest practice.

Section 30(1) provides with an exception when such use of marks is done according to the “Honest Practices” in industrial and commercial matters. When there are comparative advertisements then it might lead to dilution, tarnishment of the trademark of the competitors

The Act permits Comparative Advertisements in three ways:

1. If there is a bonafide use of Trademark,
2. If in accordance with the honest practices,
3. If it does not take an unfair advantage of the reputation of the mark.

Pepsico. Inc. and Ors. v. Hindustan Coca-Cola Ltd. and Anr.[4]

The concept of disparagement was explained by Delhi High Court where it was stated that ‘a manufacturer can make a statement for making his goods at best level and he also makes statement for puffing of his goods and the same will not give a cause of action to the other traders or manufacturers of similar goods to institute proceedings. In doing so, there is no disparagement of the manufacturer’s goods. A manufacturer is not entitled to say the competitor’s goods are bad as to puff and promote his goods. Thus, it was concluded that comparative advertising cannot be permitted which denigrates the trade name or trademark of the competitor.

Reckitt Benckiser (India) Ltd. v. Hindustan Unilever Ltd.[5]

The court held that the advertisement showed between the defendant’s product “Lifebuoy” and the petitioner’s product “Dettol” was a violation of Section 30(1) of the Trademarks Act, 1999. The Court stated that a trader is allowed to declare his goods as the best but the defendant showed the comparison between the two products in his ad and crossed the thin line between puffery and disparagement.

Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd.[6]

According to the Supreme Court, the information available through the advertising must be for the benefit of the public. The law relating to trademarks is also for the protection of public interests only.

Advertising Standards Council of India (ASCI) and Comparative Advertisements

It is a self-regulating voluntary organization of the Indian advertising industry. It was established for protecting the interests of the consumers while observing and guiding the commercial communications.

ASCI has adopted a Code for Self-Regulation (ASCI Code) which applies to all involved in the commissioning, creation, placement, or publishing of advertisements to scrutinize advertising in India. Chapter IV of the code deals with the form and manner of comparative advertising. Advertisements containing comparisons with competing manufacturers and sellers are permissible in the interests of vigorous competition and free dissemination of information. There are following requirements being to be satisfied are:

1. Advertiser’s product is being compared with the aspects of competitor’s product.
2. The comparison should not take place in a way which confers an artificial advantage upon the advertiser and should not suggest falsely that advertiser’s product is better.
3. A Consumer should not mislead due to the comparison.
4. The advertising does not unfairly denigrate attack or discredit other products, advertisers or advertisements directly or by implication.

The above mentioned principles ensure the advertising activities are conducted in a fair manner, with the interests of all associated groups being secured. These guidelines do not have the force of law there are merely recommendatory in nature.

Consumer Complaints Council (CCC)

The CCC is constituted by ASCI where a person can complain to the ASCI if there is an objectionable advertising. The CCC consists of eminent persons from the industry and well-known persons from the civil society. CCC hears the facts of the complaint and if it finds that the advertisement in question violates ASCI Code or any other law, then it can suggest that the advertisement is voluntarily either withdrawn or modified.

How to Lodge Complaint against Comparative Advertisements

There are three types of Complaints:

Complaints from General Public which includes Government regulators and consumer groups.

1. Intra Industry Complaints (When an advertiser lodges a complaint against another advertiser)
2. Suo Moto

Procedure for Complaint

The Complaint may be submitted by letters at the postal address which is provided on the website, visit https://ascionline.org/index.php/how-to-complaint.html

1. The Complaint can be submitted through the online form, visitwww.ascionline.org and you can also contact through the telephone in 1-800–22-2724 (toll-free) and also through Whatsapp in +91-7710012345.
2. No fee required for complaints except in case of Intra Industry complaint which is lodged under the Fast Track Complaint Redressal Scheme where the decision is delivered within 7 days and a fee of INR 75,000 is charged for complaint.
3. If the complaint is complete, the decision will be taken by ASCI’s Consumer Complaints Council (CCC) within a period of one month (approximately).
4. On receipt of a complaint, the Secretariat acknowledges the complaint and requests the advertiser or agency to provide comments in respect of the complaint.
5. Within the period of 4 to 6 weeks, the CCC decides upon the complaints.
6. If the complaint is upheld, then the advertiser and its agency are informed of the CCC decision within 5 working days.
7. To comply with the CCC decision, the advertiser is given the time of 2 weeks.

For further more information of procedure of Complaint visit. https://ascionline.org/images/pdf/ccc_procedure.pdf

Freedom of Speech and Expression and Comparative Advertisements

The Constitutional guarantee has been provided under Article 19(1)(a) to regulate the advertising as the right to advertise is implicitly provided. In the case Hamdard Dawakhana v. Union of India[6], according to the Supreme Court advertisements were not constitutive of the concept of ‘free speech’. In order to promote trade and commerce, there should be the object of commercial gain. In the market, the process of economic liberalization has brought certain changes for the consumer goods. The development of many products and services increases the competition with advertising which plays a vital role in the consumer’s demand. The media was too dependent on advertising revenues. The Supreme Court held that advertising is essential for ‘commercial speech’ and can be brought within the extent of constitutional provision conferred by Article 19(1)(a). Advertisements for non-prohibited products would be protected as free speech.

Conclusion

When we consider the competition in the market, it becomes very necessary to have an edge over the competitors. Comparative Advertisements is the one which enables an advertiser to build his brand in the market stating the supremacy of his brand over the other brands. But there must have been regulations to check the abuses. It should be kept in mind of the advertisers that they not only promote their products but also educate the consumer. An ideal comparative advertisement is that which ensures the protection of consumer interests.

References

[1] https://indiankanoon.org/doc/956353/ (Date and Time of visit the site: 25/02/2018 at 12:35 PM IST)

[2] AIR 1995 (82) CC 830

[3] Ashwini Kr. Bansal, “Law of Trademarks in India”, (2009), New Delhi, Institute of Constitutional and Parliamentary Studies and CLIPTRADE, pg 507

[4] https://indiankanoon.org/doc/924003/ (Date and Time of visit the site: 26/02/2018 at 11:40 AM IST)

[5] https://indiankanoon.org/doc/60787994/ (Date and Time of visit the site: 26/02/2018 at 2:05 PM IST)

[6] https://indiankanoon.org/doc/752455/ (Date and Time of visit the site: 28/02/2018 at 01:05 PM IST)

The post Laws Governing Comparative Advertisements in India appeared first on iPleaders.

In this article, Akanksha Singh of Meerut College discusses the Concept of Adaptation and How it is different from copying.

Introduction

Under the Indian law, Adaptation is basically a change of copyrighted work converted from one format to another. TRIP incorporates Article 12 of the Berne Convention which provides that the exclusive rights of authorizing adaptation, arrangements and other alteration shall be enjoyed by the author of artistic or literary work. It is copyrighted if it meets the requirement of its originality i.e. author has created it by his or her own proficiency.[1]

Adaptation

• The absolute of the author of a scholarly project to publish, sell and reproduce his or her work, which is granted by statute in the law of copyright. Derivative work is a creative work which is referred by an adaptation which also involves a recasting or translation process that incorporates preexisting material capable of protection by copyright.
• If it meets the requirement of originality then it is copyrighted, in the say way that the author has created it by the way of his or her own proficiency, and labor without directly copying or subtly imitating the preexisting material. The mere minor alteration will not suffice.

The Copyright Act defines the following acts as adaptation:

• Conversion of a dramatic work into a non dramatic work.
• • When a literary or artistic work is converted into a dramatic work.
  • Re-arrangement of a literary or dramatic work.
  • Depiction in a comic form or through pictures of a literary or dramatic work.
  • Transaction of a musical work or any act involving rearrangement or alteration of an existing work.
  • The making of the cinematograph film of a literary or dramatic or musical work is also an adaptation.
• An adaptation is a work which is essentially the same as the original work although there may be a change in the format.[2]

Adaptation of movie

Remaking or re-releasing of movies with slight manipulation is also adaptation.

Bollywood Movies

Section 2(f) of Copyright Act defines cinematograph film and the rights are held with the author. If any person wants to remake the movie which has not entered the public domain, for doing so the person has to enter into a license with the author under section 14. The author has given an exclusive rights for adaptation of the motor picture under section 14. Due to the diversion of religion market, the adaptation in India are very common. For instance:

• Aag (2007), and Ghajini (2008) were a remake of Sholey (1975).
• The plot in Dhoom 3 (2013) was suspected to be similar to the Prestige (2006).
• Krishh 3 (2013) was inspired by the X-Men (ongoing series)
• Partner (2007) was an adaptation of hollywood originals like Hitch (2005)
• Raaz (2002) was inspired by What lies beneath.
• Karz (1980) was inspired by the Reincarnation of Peter Proud (1975)

Such adaptation is done through valid license agreement in India but such license are not very common when Hollywood movies scripts are adapted by Bollywood movies.

The case of adaptation, R.G. Anand v. Delux Films the court held that one of the most reliable test to determine whether the violation of copyright is done or not, is to see whether the viewer or reader, seen or read and get an impression that a subsequent work appears to be a copy of the original. [9]

Hollywood producers

Due to the negligible overlapping audience the hollywood producers never sought to enforce their copyright. In the recent years this concept has changed with hollywood, as now they see India as a profitable market for their product. In Warner Bros. Entertainment v. Harinder Kohli the bollywood has been accused of trademark infringement, apart from copyright infringement, without licensing from the owner of the most renowned trademark “Harry Potter”.

Copyright

• Copyright is the legal protection given to the creator of an original literary or artistic work. It is the exclusive right granted by the law to the creator of such original work, to do, authorize, or prohibit certain acts relating to such work.
• Cardinal importance for author, music production companies and producer, films production companies, computer programming, artists, architects, composers, and designers are assumed by Copyright.
• Before the signing and the subsequent introduction of the 1957 Act, the Copyright laws of India were governed by the Copyright Act of 1914. This act was linked to the British Copyright of 1911 to India.
• Most of the laws contained in the Copyright Act of 1957 are based on the copyright law of the United Kingdom-specifically the Copyright Act of 1956. India’s Copyright laws comply with copyright protection. The country is a member of the Berne Convention of 1886, the Universal Copyright Convention of 1951 and the Agreement on Trade-Related Aspects of Intellectual Property Rights Agreement of 955.[3]

How Adaptation is Different from copying

Sometimes, the term “adaptation” and “copying” are used interchangeably. This has led to a lot of confusion. Comparing and constricting characteristics in one way to understand their similarities and differences. The difference between two are given below.

Classes of Works for which Copyright Protection is Available in India

• Original literary, dramatic, musical and artistic work.
• Cinematograph films
• Sound recording
• Artistic work
• Musical work
• Sound recording
• Coverage for Government work
• Author [4]

Derivative

1. Derivative work is a work based upon one or more presiding work which includes motion picture version, sound recording, art reproduction and many others in any other form in which a work may be recast, transformed, or adapted. Adjustment and conversion which as a whole, represent an original work, is a derivative work U.S. 101 is consist of Derivative work. The one is also known as new versions.
2. A derivative work is a work which refers to the work as a whole it is not just about the modifications. Then the other principle provides that the copyright in a derivative work is independent of, and does not affect or augment the scope, subsistence, duration or ownership of, any copyright protection in the material.
3. Derivative work includes the material in the original work, although the copyright in the derivative work extends only to the material contributed by the author of the derivative work, employed in the work under section 103(2). The material employed in the derivative work is part of the copyright derivative work as a whole, but the copyright owner of the derivative-work copyright does not obtain exclusive copyright rights in the material.
4. Under section 106(2) of the Copyright Act, the copyright owner has the right to prepare and authorize others to prepare derivative works based on a copyrighted work. A new copyright into the derivative work bounces into existence upon creation and fixation of the derivative work when the right is given to the other party by the copyright owner.[5]

Conclusion

• Adaptation and Copying are the two different sides of the same coin and have a blurred line of difference between them.
• Adaptation, Derivative and Copying are all the part of the copyright act.
• Adaptation is a practice which results are sustained also it involves a huge planning.
• Adaptation cannot take place with a mere change or with the addition of some matter.
• Copyright is a wider term and Adaptation and Copying are the part of the Copyright.
• Derivative work is based on one or more preexisting work, as musical arrangement, artistic work, picture version, and many other forms in which a work may be recast and transformed.

References:-

[1]copyright.lawmatters.in/2010/10/adaptations-derivations-and.html (Date of visit is 06/02/18 and the time of visit the site is 10:05 AM)

[2]copyright.lawmatters.in/2010/10/adaptations-derivations-and.html (Date of visit is 06/02/18 and the time of visit the site is 10:05 AM)

[3]www.copyright.gov.in/Documents/Copyrightrules1957.pdf (Date of visit is 06/02/18 and the time of visit the site is 10:05 AM)

[4]https://en.wikipedia.org/wiki/Copyright_law_of_India (Date of visit is 06/02/18 and the time of visit the site is 10:05 AM)

[5]https://www.law.cornell.edu/wex/derivative_work(Date of visit is 06/02/18 and the time of visit the site is 10:05 AM)

[6] Indian Copyright Act 1957

[7] Section 14 of Indian Copyright Act 1957 -Indian Kanoon

[8] section 102 [17USC102] includes Derivative Work.

[9] https://indiankanoon.org/doc/1734007/

The post Concept of Adaptation – How Adaptation is different from copying appeared first on iPleaders.

In this article, Abhirup Raha pursuing Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata discusses Interim Dividend and its Benefits.

Introduction

Interim dividend refers to the dividend which is to be paid and announced before the company has issued its annual financial statements. The Board of Directors are responsible for making this declaration. The pronounced dividend usually contains the company’s interim financial statements. The interim dividends are actually paid out of undistributed profits brought forward from previous periods. There are companies who might follow the policy of paying dividends more than once in a year i.e. either quarterly or half-yearly, which is possible only when the company has adequate undistributed profits brought forward from previous periods. Therefore, the dividends which are announced in between two annual general meetings are termed as interim dividends.

The interim dividend is basically the smaller of the two payments paid to the shareholders. It refers to all the activities of the business which are less than a year old. Interim dividends are basically paid either quarterly or semi-annually. They are always accompanied interim statement which are published by the company. It is the Board of Directors who generally announce the interim dividend only when the company has retained enough earnings and is observing earnings which are higher than expected.

Breaking Down Interim Dividend

The two common ways by which an investor can invest in a company are either by bonds or stocks.

• Bonds, pay a set rate of interest and stocks do not pay any interest.
• Dividends allow the shareholders to benefit from the earnings of interim and final dividends. A normal or final dividend is voted on and approved at the annual general meeting once the earnings are disclosed. Hence both the interim and final dividend can be paid out in cash or stock.
• Final dividend is the dividend which is paid once the company has published the annual financial statements for the fiscal year.The rate of the interim dividend is generally lower than the rate of the final dividend.
• The Board of Directors must be conservative in disclosing the interim dividend of the company so that the company’s ability to pay the final dividend is not weakened. Some basic factors like growth prospects of the economy, sale orders in hand, seasonal factors and economic outlook affect the future profitability of the company. Hence, the Board of Directors should take considerable precautions while making decisions regarding the interim and final dividend.

Difference between Interim Dividend and Final Dividend

There are six differences between Interim Dividend and Final Dividend:

• The Board of Directors are responsible for declaring the interim dividend and the shareholders disclose the final dividend at the annual general meeting.
• An interim dividend is generally disclosed before the preparation of the final accounts on the other hand final dividend is disclosed only after the accounts are prepared and the profits are known.
• An interim dividend generally relates to any part of the year i.e. six months or three months, whereas final dividend relates to an entire year.
• The Board of directors can declare the Interim dividend only when expressly permitted by the AOA.
• An interim dividend never becomes a debt on the shareholders from the company once declared, whereas a final dividend becomes a debt once declared.
• The directors of the company have the power to cancel the declaration of the interim dividend once it is declared, whereas the shareholders do not.

Benefits of paying the Dividends

Payment of the dividends to the investors have an advantageous effect both on the investors and the company, namely:

• Preference of investors for dividends: Investors prefer a company which pays stable dividends. This ensures the investors have a reliable source of income even at times when the market price of the share falls. Hence, the investors have a special preference over companies who provide for dividends.
• Bird in hand fallacy: This theory suggests that the shareholders prefers stable dividends over the possibility of having any higher capital gains in the very future. Thus dividends play a significant role in luring the investors and shareholders out of their den.
• Stability: Investors prefer companies who have a good track record in paying dividends.Hence stability acts as an important factor for a proper evaluation of investment over the companies.
• Benefits without selling: The investors enjoy the monetary benefits without selling those stocks.
• Temporary excess cash: Investors choose that the company distributes the excess cash among the investors so that the investors can reinvest the money for further higher returns.
• Information signalling: When a company announces its dividend payments, it gives a strong signal about the future prospects of the company. During this time the companies can take advantage of the additional publicity they get during this time period.

Disadvantages of paying dividends

Paying dividends can also have certain demerits:

• Clientele effect: In a situation where a company is not able to pay dividends to its investors for a considerable amount of time, the company may lose their clients. The investors may even sell off their stocks over a short term.
• Decreased retained earnings: When a company pays dividends to its investors and shareholders, it decreases its retained earnings. If at this time the company falls short on cash, it may have adverse effects.
• Limits company’s growth: When a company pays dividends over a stable period of time, it results in  limited growth of the company.
• Logistics: For a company to pay dividends, it requires a lot of record keeping on the company’s end.

Salient Points

Dividends, interim and final, need not be paid in cash. There are the non-cash dividends which are normally called by various names like the SCRIP Dividend Scheme or the dividend REINVESTMENT Plan. The main objective of these schemes is the issuance of new ordinary shares in lieu of the cash dividends.

In the ordinary course of a transaction, when we buy shares of any public listed companies we ought to understand the two terms used for any dividend declaration:

1. EX-DIVIDEND: which means that the shares you are buying do not include any dividends.
2. CUM-DIVIDEND: which means that the shares you are buying include the dividends which are going to be paid out on the due payment date.

For the ordinary shareholders, there is no fixed rate of dividend compared the others like the preference shareholders. For the preference shareholders both the interim dividend and the final dividend, both added together should not exceed the predetermined rate of dividends.

Conclusion

Hence, we can say that an Interim Dividend is a distribution that has been paid and declared by a company before determining its full-year earnings, to its shareholders. Such dividends are frequently distributed to the holders of a company’s common stock on either a quarterly or semi-annual basis.

The post All you need to know about Interim Dividend appeared first on iPleaders.