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Abetment under the Indian Penal Code

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In this article, Qamar of RMLNLU discusses the theories of abetment under the Indian Penal Code.

Introduction

Law keeps a check on human behaviour. It categorizes them into criminal and non-criminal behaviours. However, every non-criminal behaviour even something as simple as buying a knife for your kitchen becomes criminal when there are criminal intentions behind it. The concept of abetment widens the horizons of criminal law to incorporate these criminal intentions and penalize them even when the person who bought the knife did not actually kill anyone but handed it over to someone else to do it. To explain the concept of abetment, the word ‘abet’ should be given a deep scrutiny. In general use, it means to aid, advance, assist, help and promote. In the case of Sanju v. State of Madhya Pradesh[1] the honorable Supreme court defined ‘abet’ as meaning to aid, to assist or to give aid, to command, to procure, or to counsel, to countenance, to encourage, or encourage or to set another one to commit.[2] The definition of ‘abet’ as laid down, makes it clear that abetment only occurs when there are at least two person involved, which further directs us towards the arrangement and operation of the act.

This article has been chapterized into three parts. The article informatively discusses ‘Abetment’ under chapter V, VII and XVI of the Indian Penal Code.

Chapter V

One needs to understand the stages of the commission of a crime in criminal law, before tackling abetment. The four stages of a crime are-

  1. Formation of mens rea.
  2. Preparatory phase.
  3. Acting in accordance with the preparation or ‘Attempt’
  4. Injury caused.[3]

Different Penal Codes will pick a different path in order to decide the guilt gradations for different stages and subsequently the punishment. Sometimes one person commits an offence at the instigation of another person, while some other person may only be present there for help at the time of the commission of the offence, and still, some other person might help the principal culprit in procuring the tools. Therefore, it becomes necessary to mark the nature and degree of participation. Like the other inchoate offences, abetment is a preliminary crime and not a self-contained offence. ‘Abetment’ simply cannot be called an offence. It is more of a concept providing a premise to the construction of offences like abetment to do a thing and abetment to suicide.[4] The rationale is to widen the scope of criminal law so that there are some penal sanctions to the preparatory stages of a crime also. Chapter V of the IPC on abetment covers the different gradations of a criminal act considering the abettor is a different person and not directly involved in the act.

Section 107-120 in Chapter V relates to the definition of the crime, punishment duration and other particulars mentioned in the Indian Penal Code. Section 107 of IPC defines abetment to do a thing which was further interpreted in the case of Kishori Lal v. State of M.P[5]

  • Section 108 talks about as to when the offence of abetment is complete. Section 108-A gives the code extra territorial jurisdiction for an offence committed in a foreign country.
  • Section 109 state the term of punishment whereas section 110 prescribes the punishment for a criminal act which is abetted with a  different set of knowledge and intentions and committed with a different set of knowledge and intention.
  • Section 111 penalizes the unintended probable consequence of abetment which is supplemented by section 113.
  • Section 114 makes the abettor liable for the main offence if he is present at the time of the commission of an offence.
  • Section 115 and 116 penalizes abetment distinctively, in case the offence is not committed.
  • Section 117 deals with abetment of offences by the public generally or large groups of persons.
  • Section 118 prescribes the penalty for concealing the existence of a design in another to commit a grave offence.
  • Sections 119 and 120 provide for punishment in the case of public servants and others respectively for concealment of a design in another person to commit the offence not covered by S. 118.

The offence of abetment is a separate and distinct offence[6] provided in IPC. A person abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing, These things are the essentials of abetment as a complete crime. The meaning of abetment being a separate and distinct offence is the reiteration of the rationale behind punishing the preparatory stages of a crime so that the law is a deterrence not only in theory but also in practice.[7]

Act done with Criminal Intimidation is not Abetment

Illegal gratification, unfortunately, is a normalized practice in the system. Now this, practice makes the bribe giver an accomplice to some illegal act even if the bribe is extorted from them. The honourable Supreme Court clarified this dilemma in the case of Dalpat Singh v. State of Rajasthan[8] by stating that :

Those who gave illegal gratification to the appellants (Reserve Police constables) cannot be considered as accomplices as the same (bribe) was extorted from them.[9]

Broadly it can be said that the three strategies of committing the crime of Abetment are by

  • Instigating
  • Engaging
  • Intentional Aiding

Instigating

Instigating someone literally means to incite, provoke, urge or bring about by persuasion to do anything. The word ‘instigate’ has been interpreted in the case of Sanju v. State of M.P[10] One might argue that the actus reus and the mens reus do not merge to a single person, therefore, abetment to do a thing should not be an offence. In abetment by instigation, there has to be some active involvement of the abettor towards the preparatory phase of the crime. This is broadly considered as the actus reus in the crime of abetment, combined with the intention of getting something done or illegally omitted would constitute a complete criminal offence. However, there needs to be sufficient proof that the individual has willfully influenced and coerced the individual to commit a crime[11] but at the same time, it is not necessary for the person abetted to have the same guilty intention or knowledge.[12] The person abetted can totally have a different set of intention and knowledge, still, the offence is committed because the preparatory phase is being dealt with in isolation to the execution phase.[13] The entire liability of the abettor is decided within the first two stages of the crime. Now even if the execution gets a different result, the crime has been committed. Advice amounts to instigation only when intended to actively suggest or stimulate the commission of an offence. Mere acquiescence does not amount to instigation. Presence of mens reus is a necessary concomitant of instigation.[14]

In any event, in determining the criminal responsibility of the defendant in the case, it becomes necessary to determine not only the criminality of an order/suggestion/proposition in itself but also as to whether or not such an order was criminal on its face. Criminal law also rests on the fact that most times people have a free will.[15]

Lord Kenyon in the case of Higgins[16] said that, “a mere intent to commit evil is not indictable, without an act done; but is there not an act done, when it is charged that the defendant solicited another to commit a felony? The solicitation is an act sufficient to constitute an overt act of high treason.”

Commission of the offence is not necessary for the first two clauses of Section 107

  • It is immaterial whether the person instigated goes ahead to commit the crime or a group conspiring together executes the object of the conspiracy.[17] Abetment as an offence is complete in itself a distinct.[18] When the alleged abettor has instigated another or engaged with another in a conspiracy to commit an offence. It is not necessary for the offence of abetment that the act abetted must be committed.[19]

Mere verbal permission or silent assent would not constitute instigation.

  • If A tells B that he intends to loot a bank C, B says do as you like, A succeeds in looting the bank C, here B cannot be said to have instigated.

Willful misrepresentation or Concealment is sufficient to constitute abetment

  • A, a public officer, is authorised by a warrant from a Court of Justice to apprehend Z, B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C.

Direct or Indirect Instigation

  • Where a person gives to an unlawful assembly a general order to beat, it is a case of a direct instigation. The instigation would be indirect when instead of such an order a person raises a slogan “Cowards die many times before their death, the valiant die but once” will intend to provoke. This is direct instigation whereas indirect instigation would be A instigating B to commit a crime not by saying so but by harping upon the wrongs he has suffered.

Engaging

Means being actively involved in the suggestion or stimulation of the commission of the crime such as in a conspiracy. The sections 120A and 107 of the Indian Penal Code dealing with the offences of conspiracy have clearly stated the difference between the two. The case of Noor Mohammad Momin v. State of Maharashtra[20] shows the difference between criminal conspiracy and abetment to conspiracy. Criminal conspiracy has a wider jurisdiction than abetment by a conspiracy. An individual is guilty of conspiracy with the mere agreement between a group of people to commit an offence.

Ingredients of Abetment by Conspiracy

  1. A conspiracy between two or more person.
  2. An act or illegal omission may take place in furtherance of that conspiracy.

Under chapter V a mere combination of person or agreement is not enough, an act or illegal omission must also take place in pursuance of the conspiracy and the act or illegal omission must also be in order to the doing of the thing agreed upon between them.[21] Explanation 2 of Section 107 has to be read together with Explanation 5 of section 108, which provides that it is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the person who commits it. It would be sufficient if he engages in the conspiracy in pursuance of which the offence is committed. It has been held that where a criminal conspiracy amounts to an abetment under Section 107, it is unnecessary to invoke the provisions of Section 120A and 120B, as the Indian Penal Code makes specific provision for the punishment of such a conspiracy.[22]

  • A, a servant enters into an agreement with thieves to keep the door of his master’s house open in the night so that they might commit theft. A, according to the agreed plan keeps the doors open and the thieves take away the master’s property. A is guilty of abetment by the conspiracy for the offence of theft. But should the thieves not come; A will not be liable under this section.

Intentional Aiding

A person is said to abet the commission of an offence if he intentionally renders assistance or gives aid by doing an act or omitting to do an act. Mere intention to render assistance is not sufficient.

Ingredients

  • Doing an act that directly assists the commission of the crime, or
  • Illegal omission of a duty you are bound to do, or
  • Doing any act facilitates the commission of a crime.[23]

For instance, two factory workers begin quarrelling and the owner in a fit of anger shouts that if he had a weapon he would teach them a lesson. Now, if another labourer in the factory on hearing this hands him a weapon and the owner subsequently injures them with it, the labourer who supplied the weapon which facilitated the act is guilty of abetment through assistance.[24]  

Merely being present at the crime scene does not amount to aiding

  • Unless the intention was to have an effect by being present or the person was aware that an offence is about to be committed or he actively supports or holds some position, rank in committing of the offence.

Chapter VII

This chapter relates to the offences against an officer, soldier, sailor or airman in the army, navy or air force of Government of India. In addition, these words are common to all the sections right from Section 131 to 140.

Ingredients

  1. Abetment of committing a mutiny by an officer(officer, soldier, sailor or airman in the army, navy or air force of Government of India)
  2. Attempting to seduce any officer from his allegiance or his duty.

Mutiny is the uprising against the lawful authorities in the army. It can be very well compared to sedition. The concept of abetment in this chapter is analogous to Chapter V and Chapter XVI. The only difference being Chapter VII comes under the category of offences against the state, hence severe penal sanctions.

Chapter XVI

Abetment to Suicide

Instigation as a form of abetment has generally been the most essential consideration in cases of abetment to suicide and dowry death. Another important consideration to charge anyone for abetment to suicide is to prove beyond doubt that the death in question is a suicidal death.[25] Section 306, IPC reads as if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term, which may extend to ten years, and shall be liable to fine. The definition of abetment in section 306 needs to conform with the definition given under section 107 of the IPC.

If A persuades B to kill himself and he does it, then according to this section, A would be liable as an abettor. Proving the direct involvement [26] by the accused in such abetment to suicide is necessary.[27] However, abetment of suicide is a long mental process and rarely easy to prove. A conviction cannot be handed over under 306 unless clear mens rea is proved. The elements that need to be satisfied in order for an offence to come under section 306 IPC are suicidal death, and abetment thereof held in Sangarabonia Sreenu v. State of Andhra Pradesh.[28]

Let us look at some of the recent developments regarding Abetment to Suicide which put forth the ingredients of the offence as well.

  • Clear mens rea to commit the offence is a sine qua non for conviction under Section 306 IPC[29]
  • Merely because wife committed suicide in matrimonial house, husband and in-laws can’t be charged for abetment to suicide.[30]
  • In order to convict a person for abetment of suicide, there has to be a clear mens rea to commit an offence. [31]

References

  1. See Sanju v. State of Madhya Pradesh, (2002) 5 SCC 371.
  2.  See Kartar Singh v. State of Punjab, 1994 Cri LJ 3319.
  3.  Indian Penal Code, K A Pandey, B M Gandhi, EBC 4th Edition
  4.  Law Commission of Ireland Report, Consultation Paper on Inchoate Offences, 2008
  5.  See (2007) 10 SCC 797
  6.  See State of Kerala V. S. Unnikrishnan Nair, (2015) 9 SCC 639.
  7.  See Section 108 IPC, Explanation 2
  8.  See Dalpat Singh v. State of Rajasthan, AIR 1969 SC 17 (2
  9.  Id
  10.  Supra Note 1
  11.  Muthammal v. Maruthatla (1981)
  12.  See Section 108 IPC, Explanation 3.
  13.  See Section 109 IPC
  14.  See Swamy Prahaladdas v. State of M.P. & Am., 1995 Supp. (3) SCC 43
  15.  See Morissette v. United States, 342 U.S. 246, 250 (1952)
  16.  See (1801) 2 East 5.
  17.  See Faguna Kanto v. State of Assam, AIR 1959 SC 673.
  18.  SUpra note 6.
  19.  See Jamuna Singh v. State of Bihar, AIR 1967 SC 553.
  20.  AIR 1971 SC 885, (1971) Cr Lj 793 (SC)
  21.  See Section 107 IPC, Explanation 2.
  22.  AIR 1960 Pat 459 (468)
  23.  See Faguna Kanta Nath v. State of Assam, AIR 1959 SC 673.
  24.  (1874) 12 WR 527
  25.  See Air 1942 Mad 92 (93)
  26.  M. Mohan v. State 2011(3) SCC 626
  27.  Jagannath Mondal v. State of West Bengal
  28.  (1997) 4 Supreme 214
  29.  Pramod Shriram Telgote v. State of Maharashtra, Crl. Application (APL) No. 293 of 2013.
  30.  See Channu v. State of Chattisgarh, 2017 SCC OnLine Chh 1234
  31.  See Gurucharan Singh v. State of Punjab, 2016 SCC OnLine SC 1415

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Nature of Fourth Schedule of Arbitration and Conciliation Act, 1996

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In this article, Swati Garg, an Advocate and an LL.M. graduate from Gujarat National Law University discusses the Fourth Schedule of Arbitration and Conciliation Act, 1996.

Arbitration and Conciliation Act, 1996 (herein referred to as the Arbitration Act) was amended by the Arbitration and Conciliation (Amendment) Act, 2015 which inserted Fourth Schedule in the Act. By inserting the schedule, legislators have tried to regularize the fees of arbitrators in domestic arbitration as opposed to leaving it to the discretion of arbitral tribunal or the parties.

Prior to the 2015 Amendment, Section 31(8) of the Arbitration Act provided that fees of the arbitrators would be fixed by the arbitral tribunal if it has not been already agreed upon by the parties.

With 2015 Amendment, Parliament inserted Fourth Schedule wherein a Model fee chart is provided for arbitrator fees. As per this chart, for a sole arbitrator, fees would be 25% in addition to the fees prescribed. Subsequently, it has empowered the High Court, in its discretion, to determine the fees of arbitral tribunal keeping into consideration the Model fees as specified in the Fourth Schedule.[1]

Model fees chart as provided in the Fourth Schedule

Sum in dispute Model fee
Up to Rs. 5,00,000 Rs. 45,000
Above Rs. 5,00,000 and up to Rs. 20,00,000 Rs, 45,000 plus 3.5 per cent of the claim amount over and above Rs. 5,00,000
Above Rs. 20,00,000 and up to Rs. 1,00,00,000 Rs. 97,500 plus 3 per cent of the claim amount over and above Rs. 20,00,000
Above Rs. 1,00,00,000 and up to Rs. 10,00,00,000 Rs. 3,37,500 plus 1 per cent of the claim amount over and above Rs. 1,00,00,000
Above Rs. 10,00,00,000 and up to Rs. 20,00,00,000 Rs. 12,37,500 plus 0.75 per cent of the claim amount over and above Rs. 10,00,00,000
Above Rs. 20,00,00,000 Rs. 19,87,500 plus 0.5 per cent of the claim amount over and above Rs. 20,00,00,000 with a ceiling of Rs. 30,00,000

If there is only a sole arbitrator, he shall be entitled to an additional amount of 25 per cent on the fee payable.

In lieu of their powers, Delhi High Court and Rajasthan High Court have already framed rules regarding arbitrator’s fees. Punjab and Haryana High Court has adopted the model fees prescribed in the fourth schedule in toto[2] whereas Delhi and Rajasthan High Court has departed from the same and have set the fees lower than what is prescribed in the Arbitration Act.[3]

Parties will be benefited from this fixation of fees as usually prices quoted in adhoc arbitration are higher than this. Parties having no say in this, have to comply with these demands of humongous fees. Though the Supreme Court and various High Courts have frowned upon this act of charging of higher fees by Judges.[4] For the parties, these model fees are a welcoming step.

However, the question which arose here is regarding the applicability of Fourth Schedule, if it is mandatory or just directory. The use of the word ‘Model’ in the Schedule and power of High Court to make rules for fixation of fees has created an ambiguity as to the applicability of the schedule. The concern here is what if the High Court doesn’t wish to enact any rules, then is it mandatory for parties to abide by the model fees?

In the case of Kumar & Kumar Associates vs The Union of India & Ors.[5], Patna High Court has clarified that the parties have to abide by the Fourth Schedule.

It is also relevant to mention here that under Section 29 B of the Arbitration Act, there is a provision of fast-track arbitration which has been inserted by 2015 amendment act. Apart from taking a mere six months of time to complete the proceedings, section 29 B (6) let the parties and arbitrator decide the fees.

Who pays the Arbitration fees?

Section 31 A of the Arbitration Act empowers the arbitral tribunal to determine as to which party pays the fees. The general rule is that the unsuccessful party pays the share of fees of the successful party, however, the arbitral tribunal can decide differently by passing a reasoned order in writing. The arbitral tribunal has to keep the below-mentioned points[6] in mind before deciding on the share of the party:

  1. the conduct of all the parties;
  2. whether a party has succeeded partly in the case;
  3. whether the party had made a frivolous counter-claim leading to delay in the disposal of the arbitral proceedings; and
  4. whether any reasonable offer to settle the dispute is made by a party and refused by the other party.

To save oneself from such outcomes, parties are allowed to make an agreement for dividing the cost of arbitration but it will only be valid if such agreement is made after the dispute came into existence.

Conclusion

Arbitration is one of the best mechanism to resolve a dispute without the intervention of the court yet high arbitrator fees have discouraged parties from opting for it. The model fees are acting as a deterrent against the practice of demanding such exorbitant fees. Many courts have adopted the same, yet many haven’t. Though there is still a need for the Supreme court ruling as the fees aren’t mandatory and High courts have the power to make rules regarding it, still this fresh change has brought a sigh of relief for parties.

References

[1] Section 11(14) of the Arbitration Act

[2] https://highcourtchd.gov.in/sub_pages/left_menu/Rules_orders/high_court_rules/vol-I-pdf/chap4partEV1.pdf

[3] http://www.dacdelhi.org/topics.aspx?mid=21; http://www.bareactslive.com/RAJ/RJ485.HTM

[4] https://timesofindia.indiatimes.com/city/delhi/HC-scraps-ex-judge-panel-over-high-fee/articleshow/31300401.cms; http://www.lawyersclubindia.com/news/SC-snubs-retd-Judges-for-charging-heavy-fee-in-arbitration-cases-10521.asp;
https://indianexpress.com/article/india/india-others/hc-govt-officials-cant-charge-fees-in-arbitration-cases-need-guidelines/

[5] https://indiankanoon.org/doc/125836906/

[6] Section 31 A (3) of the Arbitration Act

 

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Best legal research internships in India

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In this article, Ana Khan gives a list of ten best legal research internships in India.

Introduction

Theory and Practical are the two important segments of any curriculum and in the professional courses like LLB, the practical aspect plays an important role. Though law school teaches every student the theoretical aspects in depth but the application of these aspects are not covered under any law school. For the purpose of understanding the applicability of the law, it is mandatory for every law student to do an internship and learn the practicality of the profession.

Where to find legal internships.

There are various online portals through which internship can be applied at various organizations.

Some of the websites are mentioned below:

  1. www.lawctopus.com
  2. www.internshala.com
  3. www.livelaw.in
  4. www.hellointern.com
  5. www.lawlex.org
  6. www.lawmantra.co.in

How to apply for an internship

  1. Search for any law firm, NGO or any research organization in which you would like to intern.
  2. Find the relevant email id of the organization/firm for the internship application.
  3. Make your CV/Cover Letter for the purpose of internship and send it to the organization.
  4. Keep the track of your application by reminding them once in a week (not more than that).

Best Legal Research Internships in India

Legal research internships are found at various Research Organizations, NGO, Lawyers, Government Organizations, Companies and Law firms. All are discussed below:

PRS Legislative

PRS track the functioning of the Parliament and works with the MP’s and MLA’s. Interns can assist these MP’s and MLA’s with their work. During the Parliament session, interns have to work for the upcoming issues and during the non-session periods, the interest of the individual is taken into consideration.

Main tasks assigned:

  1. The work mainly involves data inferences, assisting in research for a Member of the Legislative Assembly.
  2. On the last day of the internship, interns are expected to submit a report and make the presentation on the same.

Work Culture:

  1. All the analyst are easily approachable and very eager to answer the questions you ask.
  2. They will always make sure to provide you with some work

Stipend:

No stipend.

Application Procedure:

Interested persons can fill in the application form. The form has to be filled out in one session, and there is no option of saving responses.  You are expected to:

  1. write a short statement of purpose (not more than 500 words)
  2. upload an up-to-date resume in PDF format
  3. upload a writing sample of any policy issue. (not more than 1000 words) in PDF format

Contact details:

New Delhi office PRS Legislative Research

3rd Floor, Gandharva Mahavidyalaya,

212, Deen Dayal Upadhyaya Marg,

New Delhi – 110002

Tel: (011) 2323 4801-02

Email: prsindia@prsindia.org

Centre for Legislative Research & Advocacy

CLRA is an independent not-for-profit research organization which focuses on research, advocacy, and networking where you have given a chance to assist the Member of Parliament. CLRA works closely with civil society groups, parliamentary institutions, legislators, political parties, civil servants, and media to create participatory and collective wisdom and praxis in the policy and decision-making process.

Main tasks assigned:

  1. The work is mainly research-based.
  2. Making reports and questions which Member of Parliament could ask in the session.

Work Culture:

The Work environment is very relaxed. MPs are really supportive and always eager to answer your questions.

Stipend

No stipend.

Application Procedure

Please ensure that your Internship CV adheres to the basic guidelines before hitting submit button. Interested candidates can send their CVs to clraindia@gmail.com or info@clraindia.org

Contact Details

  New Delhi Office Centre for Legislative Research and Advocacy (CLRA)

C/o IMPF, 173, North Avenue, New Delhi – 110001

011-23092911

info@clraindia.org, clraindia@gmail.com

Centre for Public Policy Research

Centre for Public Policy Research is a research organization dedicated to extensive and in-depth research on current economic, social, and political issues.

Main tasks assigned

  1. To observe proceedings with court officials, lawyers, and police.
  2. Translation of documents from Hindi to English.

Work Culture

The staff is really hard working and inspires the interns to work more.

Stipend

No stipend

Application Procedure

To apply as an Intern, please Click here to fill the online Application form

Those interested in part-time jobs or volunteering can also apply

Contact Details

New Delhi Office Centre for Public Policy Research

B5/143, Safdarjung Enclave,New Delhi- 110029, India.

Email id-intern@cppr.in

Kochi Office Centre for Public Policy Research

‘Anitha’, 1st floor

S.A Road, Elamkulam,

Kochi- 682020, Kerala, India

Ph: +91 484 4043895

 Center for Death Penalty, NLU Delhi

The center on the death penalty is providing internship policy on the rolling basis. The name has been transformed to Project 39a. The policy launched to develop a robust and rewarding internship programme that will provide meaningful exposure to the complexities and nuances, in particular, of the administration of the death penalty and the criminal justice system in India.

Main tasks assigned

  1. Interns may be asked to assist in litigation activities, research projects or initiative public outreach.
  2. Interns will also be expected to assist in administrative matters.

Work Culture

Going by the reputation of the college, the expectation from the internship is very high.

Stipend

Rs.10,000 for every 4 week period of internship.

Application Procedure

Interested applicants must send the following information–

  1. Curriculum Vitae
  2. Cover Letter indicating the programme enrolled in, current year of study, the name of the university and the exact dates of the internship
  3. Statement of Purpose of not more than 500 words explaining their interest in interning with the Centre.

The application form is accessible here:

https://docs.google.com/forms/d/e/1FAIpQLSeQJjkMBQr1v1zfhhFAp-V9TIqADYfpqd3khfxWztHH_uCpCQ/viewform?c=0&w=1

NOTE-Applicants should apply at least 8 weeks but not more than 12 weeks in advance from the proposed date of their internship. Please allow for at least 4 weeks for processing the applications.

Contact Details-

New Delhi Project 39A

National Law University, Delhi

Sector 14, Dwarka,

New Delhi – 110078

Phone no. +91 11 2803 2533

Fax no. +91 11 2803 6432

p39a@nludelhi.ac.in

Vidhi Centre for Legal Policy

The Vidhi Centre for Legal Policy is an independent think tank doing legal research and assisting the government in making better laws. Vidhi is committed to producing legal research of the highest standard with the aim of informing public debate and contributing to improved governance.

Main tasks assigned

  1. To compile a list of cases which is filed to the Supreme Court by the NGO.
  2. To prepare a case analysis/case brief.
  3. To prepare a list of cases disposed of by various tribunal each year.

Work Culture

The staff is really cooperative and one of the best legal research internships.

Stipend

No stipend

Application Procedure

  • The application for an internship should be submitted by clicking on the link below. Please note that the link will remain active only for the first 20 days of every month.
  • Applicants are required to apply 2 (two) to 6 (six) months prior to the proposed date of the internship.

The internship form is accessible here:

https://docs.google.com/forms/d/e/1FAIpQLSd1gCe1h7tBfX144XUustZfTfVQwbgfEEonmGAf24Cn4vnMAQ/viewform

Contact Details-

DELHI BRANCH

 

 

D-359, Lower Ground Floor, Defence Colony

New Delhi 110024

011 4310 2767

BENGALURU BRANCH 43, Residency Road, Shanthala Nagar,

Bengaluru 560025

The Energy and Resources Institute (TERI)

For biotechnology or environmental law freaks, there is no better place than TERI to invest your time in. One of the largest developing institutions, it does not have a formal internship program. It ensures a range of research opportunities’ for its interns in areas of environmental law jurisprudence, sustainable development and the like. Apply soon, you may just be the next Marshall Eriksen!

Main tasks assigned

  1. To do research work.
  2. Data entries and tabulations as excel sheet.

Work Culture

The staff is generally quite helpful and it depends upon your mentor.

Stipend

No stipend.

Application Procedure

Click the link below to apply.

http://ngobox.org/job-detail_Intern-/-Summer-Trainee-at-TERI_25197

Contact Details:

New Delhi, Lodhi Road Branch Darbari Seth Block,

IHC Complex, Lodhi Road,

New Delhi – 110 003, INDIA

Tel: (+91 11) 2468 2100, 4150 4900

Fax: (+91 11) 2468 2144, 2468 2145

Email: mailbox@teri.res.in. (TERI)

New Delhi, Vasant Kunj Branch Plot No. 10, Institutional Area,

Vasant Kunj,

New Delhi – 110 070

Tel: (011) 7180 0222 (25 lines)

Fax: (011) 2612 2874

Email: registrar@teriuniversity.ac.in

Gurugram (Gurgaon) Branch Gurgaon – Faridabad Road,

Opposite Pathways School,

Gwal Pahari,

Gurugram – 122 102

HRLN (Human Rights Law and Network)

HRLN is a non-profit, non-governmental organization. HRLN provides pro-bono legal services to those with little or no access to the justice system, conducts litigation in the public interest, engages in advocacy, runs helplines, conducts legal awareness programmes.

Main tasks assigned

  1. The main task is mostly research work, drafting applications, affidavits.
  2. The legal work which was assigned also includes the personal meeting of clients.
  3. Work of translation is also being given to the interns.
  4. Research on what the Supreme Court held in Human Rights cases.

Work culture

Employees are very humble and delegate some of their work to the interns to provide them with work experience.

Stipend

No stipend

Application Procedure

If you are interested to undertake an internship programme, please send your application form, a recommendation letter, writing sample and CV to hrln.internships@gmail.com with a title in the subject line of your email: ‘Internship at SLIC: (mention month)’.

Download Application Form

Contact Details

 
Chandigarh Branch Human Rights Law Network

# 3177/2, Sector-44 D

Chandigarh-160047

Tel: 0172-4603177                

Email: chandigarh@hrln.org

Uttar Pradesh Branch Human Rights Law Network

20-A, Hastings Road, Ashok Nagar,

Allahabad – 211 001

Email: allahabad@hrln.org

Bangalore Branch Human Rights Law Network

No.20, Park Road, Tasker Town

Shivaji Nagar

Bangalore -560051

West Bengal Branch Human Rights Law Network

3, Parbati Chakraborty lane

Flat-1A, Sohini Apartment

Kolkata-700026

Telephone No: +91-33-4008-3355

Email: kolkata@hrln.org

Mumbai Branch Human Rights Law Network

First Floor, Jalaram Krupa

61, Janmabhoomi Marg

Fort, Mumbai – 400 001

Tel: +91-22-2282 0109/2282 0192

Email: mumbai@hrln.org

New Delhi Branch 576, Masjid Road, Jangpura

New Delhi – 110014

+91-11-24374501

+91-11-24376922(Fax)

contact@hrln.org

Madhya Pradesh Branch Human Rights Law Network

MILIND WANKHEDE (ADVOCATE)

E-7/11 S.B.I.COLONY, ARERA COLONY,

NEAR 11 No. STOP BHOPAL. M.P.

PIN – 462016

Mob.09301692528

bhopal@hrln.org

The other branches of HRLN are Shimla, Dharamshala, Almora, Tehri, Jaipur, Srinagar, Chennai, Cochin, Trivandrum, Hyderabad, Cuttack, Imphal, Itanagar, Gangtok, Kohima, Guwahati, Ranchi, Patna, Nagpur, Ahmedabad, Jabalpur, Indore, Raipur.

PUCL

PUCL is a human rights organization formed by Jay Prakash Narayan as People’s Union for Civil Liberties and Democratic Rights (PUCLDR) later the name changed to People’s Union for Civil Liberties.

Main tasks assigned

  1. Visit shelter homes, consumer courts and make a report regarding this.
  2. Submit a report on a legal issue.
  3. If you’re lucky enough you’ll get a chance to attend seminars based on any legal and social issue.

Work Culture

The staff is very friendly and always encouraged to ask more and more questions.

Stipend:

No stipend

How to apply:

Drop your CV and Cover letter at pucl.nat@gmail.com

Contact Details:

New Delhi Branch 270-A, Patparganj,

Opp Anand Lok Apartments,

Mayur Vihar I, Delhi 110 091

India+91-011-2275 0014 (phone);

+91-011-4215 1459 pp (fax)

Jaipur Branch 48, Van Vihar, Tonk Phatak, Jaipur, Rajasthan 302018

PILSARC

The Public Interest Legal Support and Research Centre (PILSARC) is a non-profit legal backup center based in Delhi. It provides support to various Human Rights Institution.

Main tasks assigned

  1. The main task is to do a lot of research on Refugee Law.
  2. The other task to do is drafting of legal opinions.

Work Culture

The office is highly resourceful and the workplace is very friendly.

Stipend

No stipend

Application Procedure

If you wish yourself to apply here, mail your applications at  pilsarc@gmail.com or rashmi@pilsarc.org.

Contact Details:

New Delhi A-131, New Friends Colony, 110065,

Email: pilsarc@gmail.com

iPleaders

iPleaders consists of a team of lawyers hell-bent on figuring out ways to make the law more accessible. A major focus area of iPleaders has been researching and developing resources through blogging, educational resources, workshops, and interactive software that entrepreneurs can use themselves as an aid during decision making

Main tasks assigned

  1. The main task is to write blogs for the iPleaders and some of them will be published on the website, you have to write about the legal issues which will be provided by the mentor.
  2. You have to do a lot of research work on the issue.

Work Culture

The staff is very friendly. As the staff is very young there is no such thing as “generation gap”, they all will understand your problem and situation. The only thing to keep in your mind is your “work” and “timings”, they are very punctual about the timings, that is, from 10 am to 7:30 pm.

Stipend

The stipend is paid on the performance basis like if you complete 50 articles during the tenure of your internship, then you will get Rs.5000/- as a stipend.

Application Procedure

Drop your CV along with Cover Letter at internship@ipleaders.in

Contact Details:

Delhi Office 33A, 1st Floor,

M. B. Main Road, Saidulajab,

Delhi:110030

Kolkata Office Technopreneurs Surrogate Ventures,

2nd Floor, Techno India University,

EM1/4, Sector V, Salt Lake,

Kolkata: 700091

Goa Office Bootstart, Greenland View,

Dandoswada. Mandrem,

Goa: 403527

Ace your Internship

To be successful in securing and excelling in a corporate internship, you need to plan and prepare well ahead. We observed the process and journey of securing a corporate law internship and converting one into a job offer for hundreds of law students and then identified the elements that worked and that didn’t work. This program is developed to enable you to acquire those skills before you even walk into a corporate internship. You will be able to build yourself into a person whom a law firm seeks out. A wide range of topics are covered in a huge amount of detail, such as:

  • How to draft an effective CV
  • How to write an effective cover letter
  • Guides for performing different kinds of tasks at an internship
  • How to excel at due diligence
  • How to excel at proof-reading assignments and learn for the future
  • Comprehensive technical skills training on M&A, Corporate, Debt Finance, FDI, General Corporate and Stamp Duty
  • Hacks for high-powered Google, Manupatra, MCA and BSE searches
  • Presentation and formatting techniques
  • Learn how to read and interpret financials of a business
  • Internship Plan for mapping out your internship progress
  • How to write expert-level articles that catch client and recruiter attention
  • How to draw complex corporate structures in PowerPoint from Day 1
  • How to build expertise in any area of law
  • How to network effectively before, during and after your internship
  • Detailed interview preparation modules for technical and HR-style interviews

References:

  1. http://www.prsindia.org/aboutus/internships-at-prs/
  2. http://www.clraindia.org/trust.php
  3. https://www.cppr.in/internships/
  4. http://www.livelaw.in/call-interns-centre-death-penalty-nlu-delhi/
  5. https://vidhilegalpolicy.in/
  6. http://www.hrln.org/hrln/join-us/interns-a-volunteers.html
  7. https://ipleaders.in/home

The post Best legal research internships in India appeared first on iPleaders.

How To Make A Career In Media and Entertainment Law

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My career in media and entertainment law was a beautiful stroke of luck.

I was informed of a job opening by a lawyer with whom I had negotiated in a prior internship. He was impressed with my work and referred me to the legal head on his own. There were a few rounds of interviews before I was selected. However, I cannot disregard the fact that the reference helped me find the gateway to my career. I was lucky!

Now, as I write about my experiences and insights, I get many queries from lawyers and law students alike. They want to know how to make their way to a career in media and entertainment law.

I think that is the weird part of our legal education system. By the time we graduate, we should have enough knowledge about our desired field. But that is not how the present system works. We are not taught enough about the viable career options. I remember my media law paper was an optional subject. True that it had the largest number of people in the class, but it should have been one of the compulsory subjects. I didn’t even know that moots on media law existed until recently!

Even the subject in college was taught by a professor with theoretical knowledge and no practical experience. We had a couple of workshops where lawyers working in the industry came and delivered lectures, but that was not enough exposure to the industry. Now there are media and entertainment law courses available, but there are very few institutes which offer a masters in the subject.

What should law students and lawyers do to pursue a career in media and entertainment law?

I believe that with enough hard work and dedication anything is possible. But it helps tremendously to know where to begin. Once that is figured out, you can take the necessary steps towards a successful career.

Here are the few things I have learned which may contribute towards building a career in this field:

 

  • Learn media and entertainments laws

 

Know your laws!

Any lawyer must know the laws first. So you can begin by reading about media laws. There is copyright laws, trademark laws, patent laws, design laws, i.e., intellectual property laws. But that does not constitute media laws alone.

Did you know that defamation and sedition laws in India constitute media laws? Yes, these are two sections from the Indian Penal Code, but form a core part of media laws.

Were you aware that Article 21 of the Constitution of India that guarantees freedom of speech and expression is the genesis of media laws? Yes. It maybe constitutional law, but Article 21 is where media laws was born.

There are various bare acts, books, journals, media and entertainment law courses, blogs, websites which will help build your knowledge base. You also need to know about contract laws, negotiation and dispute resolution to put the knowledge into effect.

To understand any legal concept, I prefer to start with the bare acts and then go through the commentaries or articles on a specific topic. They are available in libraries – physical and digital. You just have to look them up. Put in the work. It will work.

For instance, what will I do if I need to know whether the title of a cinematograph film can be protected under IP laws? I will read up the IP laws and figure out whether it should be copyrighted or trademarked. In case of a film title, procuring a trademark and using it helps. But foremost one must register the film title with the authorized association like the Association of Motion Pictures and Television Programme Producers (AMPTPP), the Film and Television Producers’ Guild of India (Guild) and the Indian Motion Picture Producers’ Association (IMPPA). You can read more about the topic here.

But theoretical knowledge is not enough. One also has to test the knowledge in the practical field. The best way to do that is through hands-on work or if you’re still in law school, try this course here that gives exercises based on real-life situations.

 

  • Gain practical knowledge

 

The best way to learn media and entertainment law is through internships or working with law firms and lawyers in the field. But, it is easier said than done.

Of the many queries I have received so far, the common query is regarding how to get internships in media and law industry. My suggestion would be to make a list of top lawyers, law firms, media companies dealing with media and entertainment law. You can find their information online. Almost all of them have a careers page or contact details. Just get in touch with them and ask about their internship programme or hiring procedure and apply! You can even follow their LinkedIn pages to keep up with the call for intern or job opportunities.

You need to have a crisp resume and a cover letter. You can check for templates online or from your college seniors, recruitment cells or do an internship course or resume building course for a well-prepared application. Don’t worry about stipend or salary if you get a good opportunity to learn. Once in the door, you will be able to develop skills that allow you to make money on the side like contract drafting, legal notices, etc.

 

  • Write Articles

 

I cannot emphasise enough on the practice of writing. Lawyers are the eternal learners. They need to keep up with the ever-changing laws and keep themselves updated. For this, they not only have to read current legal articles, but also write themselves.

Law students and even lawyers should have a habit of writing. The articles should be on the are of law you’re interested in, like media and entertainment laws. If you’re keeping yourself updated about laws and learning, then you would have developed your ideas and take on topics. Just write them! It is that simple.

Of course, all good articles are backed by a solid research and writing skills. You write what you know, so you have to research thoroughly to write a crisp article. Share it on social media and forums. Keep the article simple and on point. It should have a logical structure, your take on it, and most importantly it must serve a purpose. Your article should make legal experts, peers, professors take their time out and read it.

A good article not only effectively demonstrates your legal acumen, but also the command of the subject matter. It makes a prospective recruiter see you as a knowledgeable candidate. I have had two job offers in a little over two months just after I started writing! My resume is still the same, the only thing that changed was the writing.

 

  • Skill development and networking

 

Keeping your brain on its toes is only one step towards learning. You need to keep honing your skills which has practical applications, like your writing skills, contract drafting skills, researching skills, etc. You can do workshops, online courses, practise to develop these skill sets. The idea is to keep learning marketable skills so that you can demonstrate your value as a potential candidate.

But just being learned and skilled is not enough. You have to be able to display these skills to the right audience. You should have a professional social media presence as well, like LinkedIn. Start networking with the people in your area of interest and otherwise. You never know where the opportunity might come from. I regularly see posts on LinkedIn by recruiters looking for candidates. Sometimes, you can even approach recruiters and enquire about their internship or professional hiring programmes.

You must not stop learning. If you find yourself short time, organise it to have a more productive day. All the best lawyers are busy people, but they keep themselves sharp to stay at the top of their game.

 

  • Know your industry

 

I remember before my interview, I had no idea what my company did and how. But by the day of the interview, I had figured out their growth per cent in the past three years, their history online. In fact, I even slipped it in the middle of a conversation to show that I came prepared!

How can you know about the media and entertainment industry? Keep up with the news both in and out of courts. Even the seemingly fluff pieces in this industry might be of value for a lawyer. I found out a prominent singer was launching a recreated version of our song through a newspaper. I informed the bosses immediately, and necessary actions were taken swiftly.

The importance of knowing your industry is quintessential for any lawyer. You have to assist, advise and work with various departments. Unless you know the ins and outs of the industry and the company, you cannot perform your best. You must understand the industry to know what works best for it. For instance, in media and entertainment, rights are granted territory-wise. So a lawyer representing a producer must realise while negotiating that for a Tamil or Hindi film which territories might have the largest demographic. This way they can focus their efforts accordingly.

Is this the ultimate guide to establish yourself in the media and entertainment industry? No.

These are some of the things that I know of, which have yielded results. There is a lot of hard work and persistence required after everything. You have to put yourself out there and keep on trying until you make it happen. Don’t be complacent, keep on improving, for there are no shortcuts to a successful career in media and entertainment law.

Good luck!

 

The post How To Make A Career In Media and Entertainment Law appeared first on iPleaders.

The Legality of Felling more than 16000 Trees in Sarojini Nagar, Delhi

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This article is written by Qamar of RMLNLU. 

Introduction

On June 24, 2018, #DelhiChipkoAndolan was trending on twitter when over 1500 people protested in the Sarojini Nagar area of south Delhi against the proposed cutting of over 16000 trees for a project by the National Building Construction Corporation (NBCC).

As the above hashtag rightly conveys, the citizens of Delhi took the matter into their own hands against the felling of their already depleting green cover. Amidst the clamour that has been going on regarding the legality of this urban deforestation, some relief was seen when the Delhi High Court put a stay on the project till July 4. The Ministry of Urban Development in 2016, had proposed redevelopment of seven residential accommodation colonies under the name of ‘Master Plan 2021’ aiming to cater to the city’s population.[1]

Bypassing the Law

As a responsible citizen of Delhi, you are expected to think how the government can approve the cutting down of trees on such a magnitude, which could majorly turn the air of this city from unhealthy to toxic. It is important to know how the legal framework, both at the centre and the state level, allow such proposals to pass. But before going into that, let us look at the obligations of the state towards the environment.

  • In the case of Vellore Citizens Welfare Forum v. Union of India, it was laid down that the precautionary principle, in the context of the municipal law, observes that environmental measures shall be taken by state and must be anticipated, prevented and the cause of environmental degradation shall be attacked.[2]
  • In case of serious irreversible damage, lack of scientific certainty should not be a reason for the postponement of measures that need to be taken to prevent environmental degradation and the onus lies on the developer to show that his action is environmentally benign.[3]
  • The above principles along with the other provisions of the constitution reiterate the obligations of the state towards the environment to align it with the principle of good governance.

Central Government

A project of such nature and scale has to get an Environmental Clearance prior to the work getting started. The procedure to get an environmental clearance for any project has been laid down in the Environment Impact Assessment, Notification 2016(EIA).

EIA plays a major role when it comes to any developmental project and it is basically a procedure to know the positive and negative aspects of any proposed activity. It may also be said that it is a decision-making process to decide whether a developmental project must start or not. EIA is a process of identifying, predicting, evaluating and mitigating the biophysical, social and other relevant effects of development proposals prior to major decisions being taken and commitments made.[4] Housing projects come under category B1, in which the EIA report has to be mandatorily filed. When EIA report is filed for getting prior environmental clearance, the process goes through namely, four stages:

  1. Screening
  2. Scoping
  3. Public Consultation
  4. Appraisal
  • Screening is an important phase for every environmental clearance. This phase decides the nature and scale of the project depending on which the categories are allotted. The category decides whether the EIA report needs to be filed for approval or not. Under the current law, building projects with an area of more than 20,000 square meters require a mandatory impact assessment study.[5]
  • Scoping is about setting out the issues to be considered in the EIA, the parameters and the broad approach that is to be taken during the assessment to correctly assess the environmental issues.
  • Public Consultation refers to the phase of stakeholder analysis. It is a process by which the concerns of local affected persons and others who have a plausible stake in the environmental impacts of the project or activity are ascertained with a view to taking into account all the material concerns in the project or activity design as appropriate. All Category ‘A’ and Category B1[6] projects or activities shall undertake public consultation. However, it is not a necessary practice for all buildings/ construction projects/ Area Development projects and Townships as they come under the exception clause of public consultation in the environment impact assessment notification, 2016[7]
  • Appraisal means the detailed scrutiny by the Expert Appraisal Committee or State Level Expert Appraisal Committee of the application and other documents like the Final EIA report, outcome of the public consultations including public hearing proceedings, submitted by the applicant to the regulatory authority concerned for grant of environmental clearance.

It is evident that there is no legal recourse as far as the Environment Impact Assessment and the grant of environmental clearance is concerned by the Ministry of Environment and Forest. Filing a PIL was the only plausible option and the protest at Sarojini Nagar is an unavoidable moral question to the government.

Delhi Government

Delhi has its own act to save trees under the name of Delhi Preservation of Trees Act, 1994. Section 29 of the Act states that the Government has the power, subject to such conditions, if any, as may be imposed; the Government may, if it considers it necessary so to do in the public interest, by notification, exempt any area or any species of trees from all or any of the provisions of this Act.

Therefore, here is how the proposed project becomes a legally sound act even when undertaken by the government of Delhi. The lieutenant governor can pass such orders of felling 11000 trees in Sarojini Nagar, 2294 trees in Netaji Nagar and 1454 trees in Nauroji Nagar in the name of ‘development’ and ‘public interest’ by exercising the powers conferred to the government under Section 29 of the Delhi Preservation of Trees Act, 1994. The irony is that the same act establishes the Tree Authority in the capital region for the preservation of trees. The purpose of this act is to save trees from depletion by human activities.

Duties of the Tree Authority mentioned in the Act

  1. The preservation of all trees within its jurisdiction.
  2. Carrying out a census of the existing trees and obtaining, whenever considered necessary, declarations from all owners or occupants about the number of trees on their lands.
  3. Development and maintenance of nurseries, the supply of seeds, saplings, and trees to persons who are required to plant new trees or to replace trees which have been felled.
  4. Getting plantation and transplantation of trees necessitated by the construction of buildings. New roads or widening of existing roads or replacement of trees which have failed to come up along roads or for safeguarding danger to life and property.
  5. Organization of demonstrations and extension services for the purposes of this Act and assisting private and public institutions connected with planting and preservation of trees.
  6. Undertaking such schemes or measures as may be directed from time to time by the Government for achieving the objects of this Act.
  7. Undertaking a critical study of the proposals of various government departments and private bodies for construction of buildings, roads, factories, irrigation works laying out of, electric telephone. telegraph and other, transmission lines with regard to the protection of existing trees and planting of more trees, wherever possible.[8]

Compensatory afforestation is not the answer

The backup plan of these proposed projects, which carry out felling of trees at such a magnitude, is compensatory afforestation. It does not need a scientist to understand that five saplings cannot replace five fully-grown trees planted. Let us look at the reasons as to why planting trees are not the damage reversed.

  • A fully-grown tree is an ecosystem in itself, providing oxygen to five people.
  • Saplings need to be protected and it takes years for them to grow into a full-fledged tree.
  • Bad record of organization and government regarding compensatory afforestation.

The acquisition of land in exchange for a hollow promise of compensatory afforestation has been unprecedented. What is more unfortunate is that the felling of trees is being formalized by neglecting the ground realities and the possible consequences that might occur. Compensatory Afforestation Fund Act, 2016 came into force for setting up Compensatory Afforestation Fund Management and Planning Authority (CAMPA) at both central and state level to ensure expeditious and transparent utilization of amounts realized in lieu of forest land diverted for non-forest purpose.

What you can do to save a tree from being cut down

There are three steps:

  • Challenge the cutting down of a tree.
  • Ask for proof of permission to cut down the tree.
  • Call 100 or Tree helpline number (2337 8600)

To read more on your legal capacity to save a tree from being cut down. Click on this document released by the Delhi Forest Department.

Conclusion

As a responsible citizen, you are expected to speak up for the trees. No matter where it stands, everyone has the right to breathe its oxygen. The current issue highlights how the city is being developed lately at the cost of our trees and our health. Delhi has already started witnessing dust storms because there are fewer and fewer trees to grab the dust, and NO, the saplings being planted in their place are not enough.

References

[1] http://pib.nic.in/newsite/PrintRelease.aspx?relid=146815

[2] (1996) 5 S.C.C. 647.

[3] Id.

[4] S.C.SHASTRI, ENVIRONMENTAL LAW 150 (5 ed. 2015).

[5] Item 8 of the Schedule (Construction/Township/Commercial Complexes/ Housing of EIA Notification 2006.

[6] See Para 4 (iii) of the EIA Notification 2006.

[7] See Para 7 (III)(i)(d) of the EIA Notification 2006.

[8] See Chapter IV of THE DELHI PRESERVATION OF TREES ACT, 1994.

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Duties of an Unpaid Seller under Sale of Goods Act

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In this article, Vatsala Sharma discusses the duties of an unpaid seller under the Sale of Goods Act.

Introduction

The Sale of Goods Act, 1930 expressly lists down the rights and duties of both the buyer and the seller. It also contains express provisions relating to what an unpaid seller is and what his rights are. What it lacks is an enumeration of duties that might arise of the seller who is unpaid. By a careful and thorough reading and understanding of the provisions relating to unpaid seller under the act, one might come across certain implied duties of the unpaid seller which he is entitled to fulfill in order to establish his rights as a seller who is “unpaid”.

Unpaid seller under the Sales of Goods Act, 1930

In a general sense, an unpaid seller is the one who has sold his goods but has not received the full price of the goods he has sold by the customer or the carrier. Here it is also important to note that the seller remains unpaid even if a part of the payment remains unpaid. For example, if A sells a bike to B worth 50,000 and B pays 48,000 but fails to pay 2,000. A still is an unpaid seller.

Talking legally, an unpaid seller as according to the Sale of Goods Act, 1930 is the person or the seller of the goods who has been left “unpaid” in the following cases:

  1. When the whole price of the goods sold by the seller has not been paid or tendered to him by the buyer. For example, A buys a chair worth rupees 4000 from B but refuses to pay the amount, the rights of B as an unpaid seller arises.
  2. In the case when a bill of exchange or other negotiable instrument has been received as a conditional payment by the seller and the conditions on which it was received has not been fulfilled because the dishonor of the instrument has occurred. For example, A buys a television set from B and the payment has been made via cheque to B, but later the cheque bounces due to the insufficiency of funds in the account.

A seller also includes any person who is in the position of working as a seller. This also includes any agent of the seller to whom any bill of lading has been signed or any consignor or agent who has himself paid. For instance, A buys a washing machine from B, B delivers it to A’s house through C, A is liable to pay C.

Duties of an Unpaid Seller

Though there is no express provision relating to the duties of an unpaid seller under the Sale of Goods Act of 1930, there are certain implied duties which can be understood through the provisions and those are as follows:

Duty to inform the buyer in case of dishonor of cheque or other negotiable instrument.

  • It is the duty of the seller that he informs the buyer of the dishonor of cheque before exercising his rights as an unpaid seller. As according to Negotiable Instrument Act, Section 138 (2), after the dishonor of the cheque has occurred, it is the duty of the payee or the holder to give a notice in writing to the drawer of cheque within 30 days of the information by the bank that the cheque has been dishonored and thus make a demand for such payment.
  • It is also the duty of the holder of cheque to present it to the bank within six months from the date on which it is drawn or within the validity period of the cheque.
  • Therefore, it is important to understand that the seller cannot directly exercise his right to lien, right to stoppage in transit, or right to re-sell without informing the buyer about the default.

Duty to deliver back the goods after the payment has been made after the exercise of right to stoppage in transit.

  • In general it is the duty of the seller to deliver the goods and the buyer to accept them which may be altered by changing the terms and conditions of the contract.
  • But in case of an unpaid seller, he has the right to stop the goods in transit and the right to lien if there is any default in the payment by the buyer.
  • In case the default is rectified, the duty of the seller to deliver the goods resumes and he shall deliver the goods as according to the terms and conditions of the contract. He is also bound to deliver them within a reasonable period of time.

Duty to give notice to the carrier or bailee in possession of the goods, or to his principal for stoppage in transit.

  • Section 52 of the act empowers the unpaid seller to exercise his right to stoppage in transit by taking actual possession of the goods or by giving a notice of his claim to the carrier or bailee who is in the possession of the goods.
  • In case of the notice, the duty of the seller arises that he must give the notice within a reasonable time and under such circumstances that the principal can communicate the prevention of the delivery to the buyer by exercising his reasonable diligence. The carrier shall then, re-deliver the goods to the seller according to his directions.

Duty to maintain the goods in a deliverable state.

  • When the seller exercises his right to stoppage in transit or right to lien, he needs to make sure after the default is rectified, that the goods are in deliverable state and of the same quality and quantity as promised in the contract as the sale is not generally cancelled by the mere exercise of right to lien or stoppage in transit.

Duty to give notice to the buyer of his intentions to re-sell.

  • The unpaid seller has the right to re-sell the goods in the cases when the goods are of perishable nature or when he sends a notice to the buyer during the exercise of his right to lien or stoppage that he intends to re-sell the goods.
  • If even after the notice the buyer does not make the payment within a reasonable time, the seller has the right to re-sell the goods and recover the damages for any loss due to breach of contract from the buyer.
  • If the seller does not give such a notice to the buyer, he shall not be entitled to recover the damages from the buyer.

Duty to exercise his right to lien and right to withhold delivery only for payment of price.

  • The right to lien can be exercised by the unpaid seller only for the price due by the buyer and not for any other charges like rent for maintenance or other expenses.
  • Also, his right to withhold the property expires as and when the payment is made.

Duty to bear the expenses of redelivery when exercising his right to stoppage in transit.

  • It is well explained in section 52 clause 2 that when the carrier or other bailee who is in the possession of the goods in transit, redelivers those goods to the seller on account of notice given by him, he shall bear the expenses of such redelivery. That is to say that the costs of redelivery shall be borne by the seller himself and not the bailee or the carrier.

Duties arising in case of a sub-sale or pledge by the buyer.

  • Duty not to exercise his right to stoppage in transit and lien in contradiction to the rights of transferee:

There are cases when the buyer without establishing his legal title or making the whole payment, makes a sub-sale or pledges the goods to a third party. In such cases, the rights of an unpaid seller that is his right to stoppage in transit, right to lien and right to re-sell are defeated and he can only exercise such rights upto the extent that it does not affect, or in any case harm the rights of the third party whether he is a transferee or a buyer of such goods.

  • Duty to satisfy the amount secured by pledge to the pledgee out of any other securities of the buyer:

As already mentioned above, a seller cannot in any way affect the rights of a third party when a sub-sale or pledge is made by the buyer without establishing his legal title on the goods. The third party being an innocent party, who bought the goods in good faith, has his rights secured. Therefore, when the transfer of such goods is by way of pledge, the unpaid seller has a duty to satisfy the amount secured by the third party. He can do so by any manner or by way of any other goods of the buyer.

Duty to exercise his right to lien only when he is in the possession of them.

  • It is clear from the statute book that an unpaid seller has a lien on the goods for the price “while he is in possession of them”. Therefore, in case when the unpaid seller does not have possession of the goods, he cannot have lien on such goods. This has also been upheld by the Hon’ble High Court of Delhi in the judgment of Pawan Hans Helicopters Ltd. vs. Aes Aerospace Ltd.
  • However in the case of Suchetan Exports Pvt. Ltd. vs. Gupta Coal Ltd. and Ors. The Hon’ble Supreme Court held that wherein the contract for sale expressly provides that the seller would retain its lien over the goods and title would pass to the buyer on payment of the full price of the goods, then the unpaid seller of the goods is entitled to exercise lien over the goods, even if the possession of the goods may not be with the unpaid seller.10

Comparison between the Rights and Duties of a seller

For a better and thorough understanding of other duties of seller, whether paid or unpaid here is a comparative study of his right and duties:

  RIGHT   DUTIES
1. He can reserve the right of disposal of the goods until certain conditions are fulfilled. [sec 25 (1)] 1 He is liable to make necessary arrangements for the transfer of property in the goods to the buyer.
2. He can assume the acceptance of the goods by the buyer in following cases:
(i)  The buyer conveys his acceptance;
(ii) Does an act adopting the sale; or
(iii)Retains the goods without giving a notice of rejection, beyond the specified date (or reasonable time), in a sale on approval. (sec 24)
2. To ascertain and appropriate the goods to the contract of sale
3. To deliver the goods only on an application of delivery by the buyer ( sec 35) 3. To pass the title of the goods absolutely and effectively to the buyer.
4. Delivery of the goods can be made  in installments, when so agreed [Section 39 (1)] 4. Delivery of goods in accordance with the terms of the contract (Section 31)
5. Exercise of right to lien and retain possession of the goods, until payment of the price is made.[Section 47 (1)] 5. Ensuring that the goods supplied conform to the implied/express conditions and warranties.
6. Exercise the right of stoppage in transit and resume possession of the goods, until payment of the price (Section 49 clause 2 and Section 50) 6. To put the goods in a deliverable state and to deliver the goods when applied for by the buyer (Section 35)
7 To resell the goods under certain and suitable circumstances. (Section 54) 7 To deliver the goods within the time specified in the contract or within a reasonable time and a reasonable hour. [ sec 36 (2) and (4)]
8 To withhold delivery of the goods when the property in the goods has not passed to the buyer [sec 46 (2)] 8 To bear all expenses of and incidental to making a delivery (that is upto the stage of putting the goods into a deliverable state [Section 36(5)]
9 To sue the buyer for price when the property in the goods has passed to the buyer or when the price is payment on a certain day, in terms of the contract, and the buyer fails to make the payment  (sec 55) 9 To deliver the goods in the agreed quantity. [Sec. 37 (1)].
    10 To deliver the goods in installments only when so desired by the buyer. [Sec 38 (1)]
    11 To arrange for insurance of the goods while they are in transmission or custody of the carrier. [Sec. 39 (2)].
    12 To inform the buyer in time, when the goods are sent by a sea route, so that he may get the goods insured  [Sec. 39 (3) ]

Conclusion

An unpaid seller in addition to these duties and liabilities have some other moral duties such as to check for the possible reasons of non-payment and rectify them in case he finds any error on his part. Thus, it must be understood that the unpaid seller cannot arbitrarily exercise his 3 given rights but must also provide reasonable and appropriate opportunity to the buyer to rectify his errors and thus ultimately fulfill the contract in a better-coordinated way.

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Importance of Proofreading

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This is a Guest Post written by Jyoti Chauhan which discusses on the importance of proofreading.

Introduction

Proofreading is a final reviewing process of the content for being it presented in front of public/ audience. Proofreading consists of two words “proof” and “read”, which implies it is a process of making a content “error-proof after reading it”. Therefore, proofreading is a process which makes it error proof while reading by oneself so that the content can serve its purpose. Proofreading makes written content fit/suitable for communicating the correct message to the target group i.e. reader, customers, audience, students, etc. It ensures that the message contained in the substance is clear for delivering the planned activity in the interest of the target group. Proofreading is reading a content with caution and mark errors if any. Proofreading means simply giving an overview of the already written document. Proofreading is nothing but re-reading what we’ve written with a fresh perspective.

Proofreading gives the writer an opportunity to review their work, to ensure that it flows well, doesn’t cause the reader to stumble (unless intentional), and still conveys a clear meaning.

To be simply put, Proofreading is the final stage of the editing process, focusing on surface errors such as misspellings and mistakes in grammar and punctuation. Proofreading is important to ensure that there is not any:

  • Grammatical error, Capitalization error, Numbering error
  • Spelling error
  • Inconsistency in the format of the document,
  • Misplaced words, Sentence structure error
  • Punctuation mistakes

Why do we proofread?

Before submitting or printing an academic research paper, essay, email, memo, or any other written document, it is very important to carefully proofread it. Proofreading of written material is the final step that must be taken before a document can be considered complete. Proofreading helps us to check that we have included everything we wanted to say in any piece of writing. It gives us a chance to review our work and add in anything we may have missed out. It helps us iron out any little, unnecessary errors we may have made. Proofreading shows that we take pride in our work and that it is the best one can make it. It can help in gaining extra marks in exams and could even make the difference between an entire grade.

If we want our readers to be able to focus on the content of our writing, not the mistakes and errors that we have been overlooked and remain in our writing. When our written work is perfect, it shows others that we pay attention to detail and care about the things that we produce. This gives our writing added strength and authority.

Proofreaders generally have one main objective: to ensure that a written document is absolutely perfect in terms of grammar and vocabulary.

Content is important. But like it or not, the way a paper looks affects the way others judge it. When we’ve worked hard to develop and present our ideas, we don’t want careless errors distracting our reader from what we have to say. It’s worth paying attention to the details that help us to make a good impression. Therefore, we proofread essays, CVs, cover letters, emails, blogs, and tweets.

A lot of people underestimate the importance of proofreading and simply decide to skip it, usually due to deadline constraints. What people don’t realize is that a thorough proofread can be the difference between an outstanding essay and a mediocre essay. Alternatively, if we are writing for publication or business purposes, submitting a document that hasn’t been proofread can damage our reputation, as it will almost certainly contain errors.

Effective proofreading is absolutely vital to the production of high-quality scholarly and professional documents. When done carefully, correctly and thoroughly, proofreading can make the difference between writing that communicates successfully with its intended readers and writing that does not. No author creates a perfect text without reviewing, reflecting on and revising what he or she has written, and proofreading is an extremely important part of this process.

  • Other useful methods of proofreading involve using professional proofreading and/or editing services by trained and experienced proofreaders. There are also useful digital and online tools and apps which can assist in proofreading like spell-checkers, track change review options, Grammarly– grammar checker, and other software-driven programs available.
  • Furthermore, proofreading usually results in more succinct, readable, and clear content; making the reading experience easier, interesting, informative, educational, and enlightening.

Proofreading making a content fit for publication, it also increases chances for publication

Imagine spending all of our time and energy coming up with a concept, and researching for hours before writing it for another few days and when we finally put our work out there – the only thing people notice are the typos. Or worse, it gets rejected or discredited because of grammatical errors. Frustrating, isn’t it? Hence, proofreading all written content is of utmost importance.

After proofreading we will get an error free report ready for publication. To ensure correctness of the script we have just written and making necessary edits and refine to make it more concise, precise and error free.

Without a controversial thought, proofreading is vital and extremely important for our writing because it makes our content, error free and gives it an allowance for publishing!

Proofreading is a critical part of the writing process that involves English experts scrutinizing a written document in order to identify and rectify grammar, punctuation, spelling and vocabulary errors. Good writing always involves modification and revision, and proofreading is a fundamental part of this process. People need proofreaders in order to be sure that their work does not contain any mistakes.

Why is proofreading important when submitting our scholarly writing for publication? As a general rule, the editors responsible for accepting or rejecting the manuscripts that academics and scientists submit for publication are inundated with text. They receive far more submissions than the journals and publishers for whom they work can ever publish, so they are looking for reasons to reject manuscripts as much as they are seeking reasons to accept them. A manuscript that accurately and precisely adheres to a publisher’s guidelines, boasts a structure that organizes material in a logical and effective fashion, and uses language that clearly and efficiently communicates facts and ideas is sure to receive more positive attention and far more likely to be successfully published than a manuscript that does not achieve such a high standard. Since these are the very aspects of scholarly writing that a professional proofreader can help us perfect, engaging the services of a qualified academic or scientific proofreader can prove invaluable, particularly if our manuscript has been rejected due to problems with language and formatting. Once we have benefitted from the services of a professional proofreader, we will no doubt be able to determine for ourselves why proofreading is so very important to successful authors.

Proofreading is the last step between us and our reader, which is why it is necessary to take the time to ensure that our writing is accurate, clear, and easily understood. Proofreading helps us to check that we have included everything we wanted to say in any piece of writing. It gives us a chance to review our work and add in anything we may have missed out. Proofreading shows that we take pride in our work and that it is the best we can make it.

Proofreading important for making the Perfect CV for getting your dream job

Imagine we are applying for a job and see an ad for a role that seems ideal for us; the right salary, the right position, in the right location. We feel that we have all the right requirements and experience to apply, so we email our CV and add a brief personal statement. Then we finally hit the send button and forget about it.

A few days letter we go back to our email and realize that we have misspelt the job title and missed out some vital words and letters. This may not matter for some jobs, but there are many roles that specifically require excellent English skills; in this instance, our lack of proofreading may have cost us our dream job.

It is important to note that over 70% of interviewers discard applicants based on the typos, grammatical and spelling mistakes in a personal statement or a CV. This demonstrates how great the negative impact of errors in written work can be, and further shows how important proofreading actually is.

If we want our CV to be taken seriously, our essays to make their points effectively, and our short story to be safe from being instantly binned, we must proofread our work before we send it off anywhere. Then we proofread it again. Then get a family or friend to proofread it after that. Then, depending on how important we feel the document is, even pay a professional proofreading service to proofread it too.

Proofreading for students

If we are sitting exams soon, try to leave ourselves a few minutes at the end of each exam paper so that we can check through all our answers – remember that even one more mark can make all the difference. Use the spelling checker but be aware of its limitations…

Students in particular really feel the benefits of academic proofreading, as not doing so can often result in the loss of up to as much as 10% of their overall grade. Good proofreading can make all the difference between our work making a positive or a negative impact upon the reader.

What does our writing say about us?

In many situations, we need to use our writing skills the first time we contact someone new, whether this is an application letter to a college/university, an e-mail to a potential employer about a job or even when we write a response to an exam question. We all know that first impressions count and in these situations, what we write is like a way of introducing ourselves to someone we have never met before. Therefore, we need to consider what impression we want to give about ourselves. What might our writing say about us as a person? Does it show that we care about our work?

What might a few unnecessary errors in our writing suggest about us to a stranger? If we want to create a good impression of ourselves, it is vital that our writing shows the best work we are capable of achieving, and proofreading will help us to do this.

Proofreading in translation

Proofreading also has a lot to do with the translation process. Proofreaders go through the translated document and ensure that the translated content exactly matches the source document, and also makes sense to the end user.

Proofreading techniques followed by proofreaders

Most importantly, make sure we have a good knowledge of punctuation and grammar before we try to proofread. Unless we know what is correct, we will be in no position to spot mistakes.

  • Avoid distractions. Try to proofread in a quiet environment, with no disturbances such as phones, music, background chatter and so on.
  • It can help if we read the piece out loud. This helps us to spot faulty sentence construction and bad grammar.
  • Give ourselves frequent breaks away from the job, whether it is printed or on screen. Only we know how long we can read before we start to lose concentration, so set ourselves a fixed period of time, after which we take a break.
  • Remember that we are not just proofing the words and punctuation. We also need to spot inconsistencies in style and formatting, such as headings that suddenly switch font size, or a change in the size or style of bullet points.
  • Be methodical. Take one line at a time. Use a ruler to guide our eyes so that we don’t inadvertently miss the odd line.
  • We need to concentrate on reading one word at a time. This needs practice. When we read normally, we only skim over the words, fixing our eyes on maybe four words in one line. Most people can only accurately take in about six letters in one stare, so we are relying on our (not very accurate) peripheral vision to read the letters on either side of our stare.
  • We need to make a conscious effort to stare at each word in turn. This isn’t as slow as it sounds; it’s just a different reading technique.
  • If we are proofing our own work, leave a decent period of time between finishing the writing and proofing it. We’ll spot more mistakes if we read it with a fresh approach, as if it were a document we had never seen before.
  • Don’t rely on proofreading on screen. We will pick up most mistakes this way, and it’s easier to correct them, but there will be some we’ll miss. Always do a final proofread of the hard copy.
  • Always get someone else to do a final proofread of our own work – we tend to be blind to our own mistakes.

Conclusion

Proofreading is one of the most important and beneficial ways to ensure that what we are writing will not lead to any misunderstandings or make us sound unprofessional. We are all human, and nobody is perfect, but the last thing we need is for an individual (especially one we are looking to impress) to disregard or be perplexed by what we are trying to say due to a spelling or grammar issue. This is why proofreading is such an important aspect to writing.

Proofreading is the very last step in the writing process. However, just because it comes last, does not mean that it is the least important. Proofreading ensures that the document is completely free of errors and polished to a high standard.

Proofreading is important as it can add power to our writing; without it, our work has a higher chance of containing errors. Errors, such as poor sentence structure, typographical errors, misspellings, tense confusion, and grammatical mistakes can really undermine our potential and credibility as an applicant for a new job, as a blogger, a writer, or an academic.

Therefore I would suggest “Try to get into the habit of proofreading everything we write – it’s worth spending a few extra moments on any piece of work we do to make sure it is the best we can make it”.

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3 Skills Lawyers Have That The Rest Of The World Would Die For

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This article is written by Mohona Thakur from Team iPleaders.

Have you ever worked with a law firm? Ever heard the associates mention how miserable their lives were? Wondered what they were complaining about? Was it no social life? Or long working hours? Or a terrifying boss that gave them zero scope to make any error?

Ever been told that you need to stop being so ‘technical’ while texting? Been asked to stop pointing out the right and wrong of ‘A’ particular situation because you were thinking of it legally?

Ever wondered how every other person thinks that Google equips them at lawyering? That they know the laws as much as a lawyer does, if not better than a lawyer! How do you handle such situations? Does it re-assure you of half-a-decade of education that you gained from university to become a lawyer?

All the questions posed above lead to three different skill sets that we as lawyers have, that other working professionals would die to have. This also, in a way, makes us marketable across various other professions, if we do ever want to leave the law.

Here is a comprehensive list of 3 skill-sets that we lawyers possess that are extremely valuable:

  • Burning The Midnight Candle – Working Long Hours

Lawyers generally work into the night throughout the work week, and more often than not on weekends too. Ever asked a Supreme Court lawyer how they spent their Sunday? The most common response would be, “I was briefing a Senior Counsel in a matter listed on Monday for admission.”

Lawyers work long weekdays, throughout the weekend and then on public holidays. No kidding.

Let me give you an example. I was handed over the task of drafting an opinion for a sugar mill giant (among various other tasks) which was due in the week after the Dussehra holidays. Naturally, when we have a public holiday in the week, and have tonnes of work to finish, we prioritise. Since the clients weren’t getting back to us until the next Friday, I scheduled the draft opinion to be given to my Partner by that Monday. However, to my surprise, I was called to office on Dusshera to submit the opinion by the end of the day. Ten days before the client meeting.

In our profession, there is no scope of complaining. We deliver when we are required to. It doesn’t matter whether we are working on a transaction overnight on Friday, or drafting a petition on Saturday on an urgent basis, or briefing a number of senior counsels on Sunday.

Is it exhausting? Is it stressful? Yes. It is the primary cause of my dark circles and premature greying. How do we keep up? Naturally since we work long hours, and most part of our job is purely intellectual, we need to ensure that we function at our best always. This requires us to train ourselves.

How do we ensure that we are a hundred-percent ready for the job?

Generally, freshers come into the profession rather unprepared and with overwhelming expectations. This is only until they realise that they are not ‘where’ they think they are and need to take a step back. Five years of law school doesn’t necessarily equip you with the skill sets that this industry demands. In order to constantly deliver, no matter what time of the day it is, freshers need to know what is required of them.

A fresher working in the legal team of an IT company shall have to have basic understanding of GDPR compliance, something that is not taught in law schools. An in house counsel with a print media company needs to know the laws that govern surrogate advertising in India. Online courses on media and entertainment laws very broadly cover print media and regulations.

As for experienced lawyers, going the extra mile or another extra mile after that are expected day to day as a lawyer.

  • Naturally Spotting The Issue

Have you ever come across daily Hindi TV serials? I’m sure some of you may yet not have been influenced by the culture of Prime Video or Netflix. If you ever do happen to have a few minutes in a day, do watch these no-brainers to test your lawyer-instincts. You’d be surprised at what you actually notice.

Ever noticed married couples on TV getting divorced on a 100 Rupee stamp paper? In fact they wanted to get it absolutely right which is why they decided to use green legal size paper! I mean, sure. Sign on a two-page 100 Rupee stamp paper (instead of a 50 page divorce petition) and voila, you’re divorced!

This is a very basic example of spotting issues. Where did we learn it? Remember the ‘I’ in the IRAC? It is an integral part of our jobs. Whether we are reviewing a commercial contract or working on a trademark litigation, we are always looking for issues and solving them. We are essentially the troubleshooters.

Over the years, as we strain ourselves working day and night, we also work our skills of issue-spotting. With every new contract we draft or review, every other matter that comes on our desk. We grow.

  • Clear Communication Skills

Lawyers write. A lot.

Over the five years at law school, thanks to various writing assignments, moots, and the likes, we lawyers have been trained to write. And write well. We can draft a comprehensive legal opinion, various agreements, draft a full-fledged write petition, craft explanatory emails. Our profession requires us to write, every day and be damn good at it.

This is a skill set that not many are gifted with, and fewer acquire over the years. Therefore, adequate training for not only writing, but writing what’s relevant is required. In a live webcast on YouTube, Ms. Shruti Priya, Senior Counsel, TrueCaller India, emphasised on the need for lawyers to not only know how to spot issues, but also effectively communicate them to their clients. She drew attention to the fact that while the drafting skills of lawyers are supremely good, what we need to focus on is simplifying the issues for the clients. Most clients do not have the time to go through a ten page document to understand what they can do and cannot do. It needs to be broken down for them. You can see her speaking about spotting the right issues and communicating in the right manner here.

Writing is an integral skill we lawyers possess that we often underestimate. It needs to be honed over time through regular practice. If you are yet to be a lawyer and still wish to be able to write effectively, start practising today. Pick up a recent development that you may have noticed in any particular field of law, begin research and start writing. You can only become better with time. And if you belong to the category of students who wishes to be guided through the process of effective writing, there are online courses that offer you the guidance.

So keep in mind, what we lawyers do on a daily basis may seem like a professional hazard; long working hours, spotting issues, assertive communication. But, if you look at these from a third person’s perspective, you may only see positives. Look at these professional hazards as your strengths; then aim to build them, and don’t stop.

Who wouldn’t want an employee who is ready to work holidays and delivers constant results? Who wouldn’t want a trouble shooter as a quality in their employee? Who wouldn’t want a person who can clearly and effectively communicate?

Employers would shell out a truck load of cash for just a troubleshooter. Imagine what happens if they find a lawyer!

 

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Upcoming laws that will further Empower Indian women

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In this article, Ana Khan discusses Upcoming Laws That Will Further Empower Indian Women.

Introduction

  • Cases under ‘crime against women’ category reported an increase of 2.9 percent in 2016 over 2015.
  • Majority of these cases are regarding “cruelty by husband or his relatives” (32.6 percent) followed by “assault on women with intent to outrage her modesty” (25.0 percent), “kidnapping and abduction of women” (19.0 percent) and “rape” (11.5 percent).
  • Rape cases have reported an increase of 12.4 percent from 34,651 cases in 2015 to 38,947 in 2016. Madhya Pradesh and Uttar Pradesh reported the highest incidents of rape with 4,882 (12.5 percent) and 4,816 (12.4 percent) respectively, followed by Maharashtra 4,189 (10.7 percent) during 2016.
  • Uttar Pradesh reported 14.5 percent (49,262) of the total cases of crimes against women followed by West Bengal (9.6 percent) (32,513 cases), during 2016. Delhi reported the highest crime rate (160.4) compared to the national average of 55.2.

Constitutional provisions

Our Constitution provides the articles for gender equality and empowerment of women. Some of the articles mentioned below are:

  1. Equality before the law which is defined under Article 14 of the Indian Constitution.
  2. Article 15(1) and Article 15(3) of the Indian Constitution.
  3. Protection of personal life and liberty which is defined under article 21 of the Indian Constitution.
  4. Article 39(a) of the Indian Constitution.
  5. Provision of just and humane conditions of work and maternity relief which is defined in article 42 of the Indian Constitution.

Crime against women

1. Kidnapping Under section 359, 360 and 366 of Indian Penal Code, 1860.
2. Eve teasing Under section 509 of the Indian Penal Code,1860.
3. Chain Snatching Under section 378 of Indian Penal Code,1860.
4. Rape Under section 376 of Indian Penal Code, 1860.
5. Sexual Harassment Under section 354A of Indian Penal Code,1860.
6. Honour Killing Under section 299, 300, 301, 302, 303, 304, 307, 308, 120A, 120B, 34, 35.
7. Domestic Violence under section 498A of Indian Penal Code,1860.
9. Cyber Crime Under section 354A of Indian Penal Code, Section 66E, 67A Information Technology Act,2008.
10. Dowry Death Under section 304B of Indian Penal Code,1860, section 4 of Dowry Prohibition Act,1961
11. Acid Attacks under sections 326A and 326B of Indian Penal Code,1860.
12. Stalking under section 354D of Indian Penal Code,1860.
13. Assault to outrage the modesty of a woman under section 354 and 354B of Indian Penal Code,1860.

Upcoming Laws that will further empower Indian Women

Women’s Reservation Bill, 2008

The main objective of this bill is to represent females in Lok Sabha and state legislative due to lack of their representation in these areas.

The main features are of this bill are mentioned below:

  • 108th Amendment bill of the Constitution reserves one- third of the seats reserved in the Lok Sabha and state legislative for women.
  • One-third of the total number of seats reserved for Scheduled Caste and Scheduled Tribe reserved shall be reserved for the women of those groups.
  • Reserved seats may be allotted by rotation to different constituencies.

The Indecent Representation of Women (Prohibition) Bill, 2012

The main objective of the bill is to protect the indecent representation of women which is growing faster with the new technology.

The main focus of the bill is as follows:

  • Indecent Representation of a Woman means derogating a woman in such a way which is opposed to public policy.
  • The bill widens the scope of Indecent Representation of Women Act, 1986 to cover under this bill new forms of technologies like internet, cable television etc.
  • The bill forbids the publication of any material which makes the indecent representation of women provided it has been used in the field of science, literature or for bonafide religious purposes.
  • For representing women indecently the punishment provided is imprisonment for 3 years and fine ranging from Rs.50,000 to Rs. 1 Lakh.

Surrogacy Regulation Bill, 2016

The main objective to introduce this bill is to protect women from being exploited. It has become a practice for women of lower sections of the societal structure to rent their wombs for money. A venture where the rich exploit the women stricken from poverty.

The main objectives of the Bill are:

  • The intending couples should be the Citizen of India, they should complete at least 5 years of marriage and the female must be infertile.
  • Only medical expenses shall be provided to surrogate mother and she will be called as the biological mother of the child.
  • Central & State Government shall appoint authorities to grant eligibility certificates and also regulate surrogacy clinics.
  • Exploiting the surrogate mother shall be punishable for an imprisonment of 10 years & fine up to 10 Lakh.
  • Surrogate mother must be a ‘close relative’ of the child in order to save women from exploitation.

The Muslim Women ( Protection of Rights ) Bill, 2017

This bill makes triple talaq, a punishable offense which was decided by Supreme Court in Shayara Bano v. Union of India, 22nd August 2017.

It makes triple talaq as “void and illegal”.

  • Clause 3 of the Bill says: “Any pronouncement of talaq by a person upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal.”
  • Clause 4 of the Bill states, “Whoever pronounces talaq referred to in section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years and fine.”
  • Clause 7 says, “an offense punishable under this Act shall be cognizable and non-bailable within the meaning of the Code.” (The Code of Criminal Procedure, 1973.

The Menstruation Benefit Bill, 2017

The main objective of the bill is to understand the problems faced by the women in day to day life and also to provide menstrual leave of 2 days to every working woman in order to give them a healthy work environment.

The main features of the act are:

  • Women working in a private and public sector should be given 2 days of menstrual leave in a month.
  • Better facilities at the workplace during the menstrual cycle of a woman.

Trafficking of Persons (Prevention, Protection, and Rehabilitation) Bill, 2018

The main objective of the bill is to protect women from being exploited in the name of human trafficking.

The bill focuses on the following lines:

  • It mainly focuses on the aggravated forms of trafficking such as forced labor, begging, trafficking woman or child for the purpose of marriage and child abuse, injecting chemical substance for the purpose of sexual maturity. The punishment prescribed for these offenses are of minimum 10 years or life imprisonment.
  • The Punishment is prescribed for a person who has encouraged trafficking by means of promoting or facilitating it.
  • The Identity of victims & witnesses shall remain confidential.
  • Victims shall be entitled to relief within 30 days and time-bound trial within a period of 30 days from taking into consideration.
  • The bill has created “Rehabilitation Fund” for the first time which will be used for the physical, mental and social well being of the victim which includes education, skills, health, support and legal assistance.
  • The punishment prescribed ranges from 10 years to life imprisonment & fine up to 10 lakh.

Conclusion

So many bills are still pending in the parliament and the upcoming laws are definitely going to help women a lot but the problem is that in the 70 years of Independence only the minuscule population of the women are ready to discuss their issues. To overcome this problem we need to spread the legal education in different sectors of the society through various means like street plays, door to door campaigns. So that people should be aware of their rights and we really need to work towards the gender sensitization.

References

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Article 29 and 30 of the Constitution of India

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In this article, Ana Khan of Jamia Milia Islamia discusses Article 29 and 30 of the Indian Constitution.

Introduction

India is a dynamic constitutional democracy with a feature of accommodating pluralism in thought and language so as to preserve cohesiveness and unity in diversity. The meaning of diversity has different connotations such as geographical, religious, linguistic, racial and cultural. To say India is linguistically diverse is not an exaggeration or any subjective thing. According to the 8th Schedule of the Indian Constitution, it recognizes 22 languages, which are:

  1. Assamese
  2. Bengali
  3. Bodo
  4. Dogri
  5. Gujarati
  6. Hindi
  7. Kannada
  8. Kashmiri
  9. Konkani
  10. Maithili
  11. Malayalam
  12. Manipuri
  13. Marathi
  14. Nepali
  15. Odia
  16. Punjabi
  17. Sanskrit
  18. Santhali
  19. Sindhi
  20. Tamil
  21. Telugu
  22. Urdu

A linguistic or religious minority community can conserve its language and culture through educational institutions but “no citizen shall be denied admission into any educational institution maintained by the state or receiving aid out of state funds on grounds only of religion, race, caste, language or any of them1”. Jamia Millia Islamia and Aligarh Muslim University are the prominent examples of minority educational institutions.

The Scope of Article 29 and 30 of the Constitution

These two articles confer four distinct rights.

  1. The Right of citizens to conserve its language, script or culture [Art.29(1)]1Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same
  2. The Right of a citizen not to be denied admission into state maintained and state-aided institution on the ground only of religion, race, caste, or language [Art.29(2)2]-”No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them
  3. The Right of all the religious or linguistic minorities to establish and administer educational institutions of their own choice [Art.30(1)3]-“All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
  4. The Right of an educational institution not to be discriminated against in the matter of State aid on the ground that it is under the management of a minority [Art.30(2)4]-“The state shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.

To preserve language, script, and culture

Article 29(1) extends to all the citizens irrespective of the fact whether they are in majority or minority, the only condition being that such section must have a distinct language, script or culture of its own.

It is an absolute right for the minorities to preserve its language and culture through educational institutions and cannot be subject to reasonable restrictions in the interest of the general public.

Restrictions on the ground of religion, race, caste or language

Article 29(2) is an individual right given to citizen and not to any community. The present clause gives an aggrieved person, who has been denied admission on the ground of his religion. If a person has the academic qualifications but is refused admission only on the grounds of religion, race, caste, language or any of them, then there is a clear breach of the fundamental right under this section.5

Right to Establish and Administer Educational Institution

Article 30(1) is further divided into two parts, that is:

Right to establish

To claim the benefit under article 30(1) it is not necessary-

  1. That the institution must seek to conserve the language, script or culture of the minority community; what is necessary is its establishment by the minority community, it may impart religious or secular education wholly unconnected with language, script, and culture.
  2. That admission into such institution must be confined exclusively to members of the minority community, and not a single member of the majority community or other minority communities should have its advantage.6

Case Study of Aligarh Muslim University (AMU) {Azeez Basha v. Union of India}

In the case of Azeez Basha v. Union of India 7, the Supreme Court held that if an educational institution is not been established by the minority community then they have no right to administer it. The term “established” and “administered” have to be read in coordination. The University Grants Commission Act prohibits the formulation of “University” established by the educational institution unless and until it is governed by law.

  1. Wanchoo clearly stated that the article cannot be read to mean that even if the minority institution had been established by any other authority (Act of Parliament), in this case, the religious minority cannot avail the services of the university because “establish” and “authority” are the terms which are complementary to each other.

In the case of Dr. Naresh Agarwal v. Union of India8, where 50% of the seats to be filled on the basis of entrance examination conducted by Aligarh Muslim University and the other 50% of the seats was reserved for Muslim Candidates. The petitioners in this case, who are Hindu by caste have been deprived of their right to participate in the process of admission against that 50%. The Allahabad High Court followed the judgment of Azeez Basha v. Union of India and held that AMU is not a minority institution and struck down the amendment which was made in the favor of Aligarh Muslim University.

Definition of Minority

The term ‘minority’ is not defined anywhere in the Constitution of India but the judges have interpreted the meaning in many different cases which are mentioned below:

  • Re-Education Bill [9]

Supreme Court through J. S.R Das held that “minority” means a community which is numerically less than 50% of the total population.

A similar judgment was passed by the Kerala High Court in the case of A.M Patroni v. Kesavan10 in which it was held that “any religious or linguistic community which is less than 50% of the total population shall be considered as a “minority”.

  • D.A.V College, Bathinda v. State of Punjab & Ors [11]

For the purpose of article 30(1) a community may constitute a minority based on language, even though they may not have a separate script; it would be enough if they have a separate spoken language.

Right to administer

The word “administer” under article 30(1) of the Constitution means the right to manage and conduct the affairs of the institution. It is open to a university to impose reasonable conditions upon a minority institution for maintaining the requisite educational standard and efficiency like-

  1. Qualifications of teachers to be appointed in the institution;
  2. Conditions of service e.g the age of superannuation of teachers;
  3. Qualifications for entry of students;
  4. Courses of study (subject to special subjects which the institution may seek to teach)
  5. Hygiene and physical training of students.12

In State of Bombay v. Bombay Education Society13, it was held that “Where…..A minority like the Anglo Indian community, which is based, inter-alia, on religion and language has the fundamental right to conserve its language, script and culture under Article 29(1) and has the right to establish and administer educational institution of their choice under Article 30(1)5 surely then there must be implicit in the fundamental right, the right to impart instruction in their own institutions to children of their own community in then own language…….such being the fundamental right the police power of the state to determine the medium of instruction must yield to the fundamental right to the extent it is necessary to give effect to it and can not be permitted to run counter to it”

In St. Xavier’s College v. The State of Gujarat, the court held that the right to administer is the right to ‘conduct’ and ‘manage’ the affairs of the institution.

Admission Procedure in Minority Educational Institution

In St. Stephen’s College v. University of Delhi14, the preference is given to Christian students by St.Stephen’s College was challenged.

The Supreme Court by the majority of 1 to 4 held that the college is not bound to follow the university circulars as it will deprive the college of their minority character. The right to select students for admission is an important facet of administration. This power also can be regulated but the regulation must be reasonable and should be conducive to the minority institutions. The impugned directive of the university to select students on the uniform basis of marks secured in the qualifying examinations would deny the right to the college to admit students belonging to the Christian community. Unless some concession is provided to the Christian students15

The court decided the two categories for the selection process:

  1. Category I – 50% of the seats reserved for the minority community.
  2. Category II – remaining 50% are selected on the basis of merit.

But in T.M.A Pai Foundation v. State of Karnataka [16], it was held that “A minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit. The procedure adopted or selection made should not tantamount to maladministration. Even an unaided minority institution ought not to ignore the merit of the students to the colleges aforesaid, as in that event, the institution will fail to achieve excellence”.

The court also overruled the decision in St. Stephen‟s case. The court has now granted the power to the state to fix quotas for minority students.

Role of National Commission for Minority Educational Institution – A boon for minority educational institution

The National Commission for Minority Educational Institution has the original jurisdiction to determine the minority status of any educational institution as held by the Hon’ble Supreme Court of India.

Justice Nariman, who authored the judgment, said the NCMEI Act grants the Commission to act upon all the queries relating to the status of a minority institution.

A power of cancellation was also vested in the NCMEI to cancel a certificate granted either by an authority or the NCMEI.17

Whether Jamia Millia Islamia is a minority institution?

On 22nd February 2011 National Commission for Minority Educational Institution (NCMEI) has declared Jamia Millia Islamia a religious minority institution and that the university will have the benefit of being a minority institution under article 29 and article 30 of the Constitution.

According to Section 2 (o) of the JMI Act says “University” means the educational institution known as “Jamia Millia Islamia” founded in 1920 during the Khilafat and Non-Co-operation movements in response to Gandhiji’s call for a boycott of all Government-sponsored educational institutions, which was subsequently registered in 1939 as Jamia Millia Islamia Society, and declared in 1962 as an institution deemed to be a University under section 3 of the University Grants Commission Act, 1956, and which is incorporated as a University under this Act.18

On 5th March 2018, an affidavit is filed by the incumbent Government in the Delhi High Court regarding the minority status of Jamia Millia Islamia where they cited the case of Azeez Basha v. Union of India to justify their stand, in which the apex court held that university incorporated under the act of parliament cannot be claimed as a minority institution.

The affidavit concludes that JMI is not a minority institution as it was set up by the Act of Parliament and funded by the central government and it was not set up by any minority sect.

Conclusion

Our constitution aims at “Unity in Diversity”. The minority status is not only dependant on the basis of religion but also on linguistic minorities. These provisions are inserted in the constitution so that minorities can also preserve and develop their culture.

In St. Xavier College v. State of Gujarat[19] that “the spirit behind the provision of the following article is conscience of the nation that the minorities, religious as well as linguistic, are not prohibited from establishing and administering educational institutes, of their choice for the purpose of giving their child the best general education to make them complete man and women of the country.”

1. India Const. Art. 29 cl.1.

  1.  India Const. Art. 29 cl. 2.
  2. India Const. Art. 30 cl.1
  3. 5. Durga Das Basu, Shorter Constitution of India, 346 (Wadhwa and Company Law Publishers, Nagpur,13th edition,2001).
  4.  Durga Das Basu, Shorter Constitution of India, 349 (Wadhwa and Company Law Publishers, Nagpur,13th edition,2001).
  5.  1968 AIR 662, 1968 SCR (1) 833.
  6. 2005 (4) AWC 3745, 2005 (4) ESC 2489.
  7. AIR 1958 SC 956.
  8. AIR 1965 Ker 75.
  9. 1971 AIR 1731, 1971 SCR 677.
  10. Durga Das Basu, Shorter Constitution of India, 356 (Wadhwa and Company Law Publishers, Nagpur,13th edition,2001).
  11.  1954 AIR 561, 1955 SCR 568.
  12. (1992) 1 SCC 558.
  13.  Dr. J.N Pandey, Constitutional Law of India,402(Central Law Agency, Allahabad,54th edition,2017)
  14. AIR 2003 SC 355.
  15.  Krishnadas Rajagopal, Supreme Court rules NCMEI has wide powers, The Hindu, (18th April,2018,22:36),https://www.thehindu.com/news/national/supreme-court-rules-ncmei-has-wide-powers/article23590265.ece
  16. https://www.jmi.ac.in/upload/jamiadocs/JAMIA/ActStatutes.pdf.
  17.  1974 AIR 1389, 1975 SCR (1) 173.

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Tax Exemptions Available to a Startup as per the Indian Taxation Laws

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In this article, Rituparna Padhy, pursuing Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata discusses on tax exemptions available to a startup.

Introduction

According to the Nasscom Startup Report of 2017, India is the third largest startup ecosystem, with over 9000 technology startups. To further improve the legal framework for startups, the BJP Government launched the scheme ‘Startup India’ in 2016. The scheme focused on providing tax exemptions to the newly-emerged and upcoming startups in addition to the previously existing taxation laws.

Startup India

Startup India is a scheme introduced by the Ministry of Commerce and Industry (Department of Industrial Policy and Promotion [DIPP]) of Government of India and supported by the Small Industries Development Bank of India (SIDBI). It was launched on 16 January 2016, with the objective to make India a nation of ‘Nation Creators’ instead of ‘Job Seekers’. The action plan of this initiative is based on three pillars:

  1. Simplification
  2. Funding Support and Incentives
  3. Industry-Academia Partnership and Incubation.[1]

Intending to give motivating forces to new businesses and help their extension in the underlying period of their business, the plan was introduced to give a deduction of 100% of the benefits and increases derived by a qualified start-up that identifies with “innovation development, deployment or commercialization of new products, processes or services driven by technology or intellectual property.”[2]

What is an ‘eligible startup’?

As per the Startup India Action plan, the DIPP has established the followings conditions to be fulfilled by a startup to become ‘eligible’ for tax exemptions:

  1. Being incorporated or registered in India for less than seven years and for biotechnology startups up to ten years from its date of incorporation.
  2. The annual turnover not more than Rs. 25 crores in any of the previous financial years (FYs).
  3. Aims to work towards innovation, development, deployment or commercialization of new products, processes or services driven by technology or intellectual property.
  4. Not formed by splitting up or reconstruction of a business that is already in existence.
  5. Must have obtained certification from the Inter-Ministerial Board setup for such a purpose.
  6. Incorporated as a Private Limited Company, or a Registered Partnership Firm, or a Limited Liability Partnership.[3]

Who grants the tax exemptions?

The Inter-Ministerial Board set up by the DIPP validates startups for granting tax benefits. The Board comprises of:

  1. Additional Secretary, Department of Industrial Policy and Promotion, Convener
  2. Representative of Ministry of Corporate Affairs, Member
  3. Representative of Ministry of Electronics and Information Technology, Member
  4. Representative of Department of Biotechnology, Member
  5. Representative of Department of Science & Technology, Member
  6. Representative of Central Board of Direct Taxes, Member
  7. Representative of Reserve Bank of India, Member
  8. Representative of Securities and Exchange Board of India, Member.[4]

The above board shall validate startups as being eligible for two tax exemptions.

What are the tax exemptions?

Tax exemptions can come under two categories:

Income Tax Exemption on profits under Section 80-IAC of Income Tax Act

A startup recognized by the DIPP can apply to the Inter-Ministerial Board for “a full deduction of tax on the profits and gains from business as per the Income Tax Act.”[5] The deduction is for “any three consecutive years out of seven years from the year of incorporation of the startup.”[6]

The recognized startup must only be a private limited company or a limited liability partnership and thus registered as per the Companies Act[7], the Partnership Act[8], or the Limited Liability Partnership Act[9]. Such a startup, incorporated after 1 April 2016 and before 1 April 2021, can qualify for a 100% tax rebate on profit for a period of three years in a block of seven years, provided that annual turnover does not exceed Rs. 25 crores in any financial year. This is to help the startups to meet their working capital requirements during their initial years of operation.

Income Tax Exemption on investments above fair market value received

A DIPP recognized Startup, being a private limited company, shall be eligible to apply to the Inter-Ministerial Board for exemption from “income tax on investments above fair market value made by resident angel investors, family or funds which are not registered as venture capital funds.”[10]

Provided the following conditions are fulfilled:

  1. the aggregate amount of paid-up share capital and share premium of the Startup after the proposed issue of shares does not exceed ten crore rupees,
  2. the investor/proposed investor, who wishes to subscribe to the issue of shares of the Startup has —the average returned income of twenty-five lakh rupees or more for the preceding three financial years, or
    the net worth of two crore rupees or more as on the last date of the preceding financial year, and
    the Startup has a certified report from a merchant banker that specifies elaborately the fair market value of shares.”[11]

The eligible startups can also apply for tax exemptions under the following categories as per the Startup India Action Plan –

Exemption from tax on long-term capital gains

The Income Act allows eligible startups to exempt themselves from taxation on a long-term capital gain if such a long-term capital gain or a part thereof is invested in a fund notified by Central Government within a period of six months from the date of transfer of the asset.[12] The maximum amount that can be invested in the long-term specified asset is Rs. 50 lakhs. Such amount shall remain invested in the specified fund for a period of 3 years. If withdrawn before 3 years, the exemption will be revoked in the year in which money is withdrawn.

Tax exemption to individual/HUF on investment of long-term capital gain in equity shares of eligible startups

Section 54-GB of the Income Tax Act has now been amended to include an exemption on capital gains invested in eligible startups.[13] Thus, if an individual or Hindu Undivided Family(HUF) sells a residential property and invests the capital gains to subscribe the 50% or more equity shares of the eligible startups, then tax long-term capital will be exempt provided that such shares are not sold or transferred within 5 years from the date of its acquisition.[14] The startups shall also use the amount invested to purchase assets and should not transfer assets purchased within 5 years from the date of its purchase.[15] The ‘new assets’ in the above section shall also include computers or computer software in case of technology driven startups so certified by the Inter-Ministerial Board’s Certification notified by the Central Government in the official Gazette.[16]

Set off of carry forward losses and capital gains allowed in case of a change in shareholding pattern

The carry forward of losses in respect of eligible startups is allowed if all the shareholders of such company who held shares carrying voting power on the last day of the year in which the loss was incurred continue to hold shares on the last day of the previous year in which such loss is to be carried forward.[17] The restriction of holding of 51 per cent of voting rights to be remaining unchanged under Section 79 of the Income Tax Act has been relaxed in case of eligible startups.[18]

Analyzing Startup India Action Plan

Tax collection is typically not the essential worry for most of the new startups who are attempting to make back the initial investment. Since startups don’t make benefits in their initial period, the advantages of a three-year charge occasion are effectively just notional. The Finance Act of 2016 allowed exceptions to long haul capital increases if those are put resources into units of determined assets. The exclusion was likewise allowed for “long terms capital gains arising upon transfer of a residential property if such gains were invested in a start-up eligible as per the recent taxation laws.”[19] Yet, there have been few examples of these advantages being lapped up by the start-up community in the vast majority of the states. Exemption from “angel tax” was a more relevant step as an investment by residents in the eligible start-ups could benefit due to this concession. While this amendment holds potential, it falls short of the intended impact as only “13 start-ups have been certified so far for receiving the said tax benefits.”[20]

Conclusion

The Startup India Action Plan of 2016 focuses on improving the startup ecosystem in India and includes tax exemptions on capital gains and on investments above Fair Market Value. It is noteworthy that the government has thought of separately making startups a focal point of attention, given the entrepreneurial turn the youth is increasingly taking. While the initiative has been effective to some extent, its impact is still restricted because of bureaucratic impediments. The Action Plan should be regularly reviewed and amended so as to accommodate the market demands while maintaining a conducive atmosphere for the startups to prosper.

References

[1] PM Modi in Mann Ki Baat: ‘Start-Up India, Stand Up India’ Action Plan on January 16. The Times of India. December 28, 2015. Accessed April 12, 2018. https://timesofindia.indiatimes.com/india/PM- Modi-in-Mann-Ki-Baat-Start-Up-India-Stand-Up-India-action-plan-on-January- 16/articleshow/50340724.cms.

[2] s. 31, s. 32 and s. 41, Finance Bill, 2016.

[3] #StartUpIndia.” Accessed April 12, 2018. https://www.startupindia.gov.in/startup-registration.php. Official website of the Startup India Action Plan launched by the Government of India in 2016

[4]  “Tax Incentives.” Accessed April 13, 2018. https://www.startupindiahub.org.in/content/sih/en/startupgov/imb.html.

[5] s. 80-IAC, Income Tax Act, 2017.

[6] s. 80-IAC, Income Tax Act, 2017.

[7] s. 3 and s. 7, Companies Act, 2013.

[8] s. 58 and s. 59, Partnership Act, 1932

[9] s. 12, Limited Liability Partnership Act, 2008.

[10] “Tax Incentives.” Accessed April 13, 2018. https://www.startupindiahub.org.in/content/sih/en/startupgov/imb.html

[11] “Tax Incentives.” Accessed April 13, 2018. https://www.startupindiahub.org.in/content/sih/en/startupgov/imb.html

[12] s. 54-EE, Income Tax Act, 2017.

[13] s. 54-GB(6)(d), Income Tax Act, 2017

[14] Startup India: Eligibility, Tax Exemptions and Incentives.” Accessed April 15, 2018. https://cleartax.in/s/startup-india-tax-exemptions-eligibility

[15] Startup India: Eligibility, Tax Exemptions and Incentives.” Accessed April 15, 2018. https://cleartax.in/s/startup-india-tax-exemptions-eligibility

[16] s. 31, s. 32, s. 41, Finance Bill, 2016.

[17] Startup India: Eligibility, Tax Exemptions and Incentives.” Accessed April 15, 2018. https://cleartax.in/s/startup-india-tax-exemptions-eligibility

[18] s. 79(b), Income Tax Act, 2017.

[19] “Startup India Action Plan Falling Short.” Accessed April 16, 2018. https://www.livemint.com/Opinion/dsoVRGzssN5LKBQnWlj74K/Startup-India-action-plan-falling-short.html 

[20] “Startup India Action Plan Falling Short.” Accessed April 16, 2018. https://www.livemint.com/Opinion/dsoVRGzssN5LKBQnWlj74K/Startup-India-action-plan-falling-short.html.

 

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How to Teach Practical Aspects of Law for Career Success

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This article has been written by Ramanuj Mukherjee, CEO, iPleaders with inputs from Abhyuday Agarwal, COO, iPleaders.

How do Indians learn law?

Here is how law is taught in Indian law schools, whether traditional law colleges or the hallowed National Law Universities.

You attend lectures by law teachers, who usually have little to no practical experience of doing actual legal work (especially because full time law teachers are not supposed to practice law in India, due to a strange regulation put in place by the Bar Council of India). The academic expertise they claim is usually based on text books they read, or research they do around legal doctrines. On the other hand, students join law schools and pay big fees in the hope that they will score good jobs when they graduate, with big law firms, in-house corporate teams or at least with a chamber of a good lawyer.

The distance between what those firms, in-house legal teams and lawyers practice and what the teachers teach in law school is massive.

In law schools, you learn sections of important statutes, commentary by jurists around these sections and if you are in a good law school, then case laws which is essentially interpretations of these statutes. There are supposed to be clinical classes, where you are also supposed to learn the practical side of law towards the end of law school, such as drafting and negotiation, client counselling, but those classes breeze by without sufficient weightage.

The result is that most law students graduate from law school completely unprepared to deal with the work that they are supposed to handle as lawyers. A law student usually takes contract law classes within first two years of joining the law school. However, if you ask them, you will see that they have no idea about what are the usual clauses in common legal contracts, or how to create a negotiation strategy. They surely read the Civil Procedure Code, but have no idea as to how a civil suit is filed at the registry of a court, or how litigation strategy is designed, or how to draft a basic petition or application for that matter. They would inevitably study the Companies Act, with no idea as to how corporate governance is designed or enforced, or how to do basic compliances under the same act.

Basically, graduate lawyers suffer from a tremendous lack of knowledge as well as skills with respect to client work, and have little idea about the legal work that happens in the real world.

So how do Indians learn legal work that will make them employable, or allow them to serve paying clients?

They are completely on their own with respect to this. When you hear that it takes 5 years or 10 years to establish oneself in the legal practice and to begin to earn enough to earn a sum good enough to survive with decent living standards, that is because of this issue. Senior lawyers hire junior lawyers for a pittance, and often openly say that the junior is lucky to even get a place to stand in their office. This is a very unusual thing, but from the seniors perspective they have to take responsibility for training an unskilled person to do work that requires high level of skills, and hence, they can’t afford to pay too much to such a novice.

This is why although lawyering is generally very well paid work, young lawyers earn too little, and continue to work very hard for their seniors, in the hope of making it big one day.

However, it is entirely possible to build your own practice early on from scratch, or to even command a good salary while working at a good chamber. It is similarly very much possible to secure a well paying job with great growth opportunities at a good law firm or in-house legal team. However, that requires you to have some practical skills. What are these practical skills that you should learn to get the coveted jobs and then to perform like a champion? We have made a comprehensive list for you. I have taken these lists from our course manuals at LawSikho, where we try to inculcate these skills with each lesson and each exercise. I will come to details of how we manage to teach these skills later.

Here are 10 ultra-important skills that law schools do not teach you, but you must acquire in order to find early success in your legal career:

  • The ability to find, understand and analyse any law whatsoever
  • The ability to put an argument or a point across in writing or through a speech
  • The ability to draft and negotiate contracts
  • The ability to come up with a legal strategy or legal position given a specific situation, and the ability to advice clients regarding the same
  • The ability to plan and manage a legal process efficiently from the beginning till a remedy is obtained or deal is closed. Also known as project management skill – every case or matter is a project after all.
  • The ability to understand and support the commercial/pecuniary objectives of clients, as well as comprehensive understanding of business models, organizational models and business logic behind any transaction
  • The ability to process a large amount of information to quickly arrive at what is important in any given situation
  • The ability to invent a solution through creativity, but supported by legal analysis
  • The ability to understand and implement procedural aspects of law with a very high level of attention to details (eg. deftly handling the registry of a court, or ensuring quick enforcement of a decree in a clogged legal system)
  • The ability to represent the interests of an unrelated person dispassionately, coherently, only based on legal logic before an authority or another party

Law firm specific skills

(Some of these skills may appear as though they are similar or overlapping, but they may not be.)

  • Understanding of the documentation, review and execution process
  • Ability to communicate precisely, clearly and frequently with different stakeholders of the client through a mix of emails, conference and phone calls, including sharing legal or policy updates and their possible impact on the specific transaction or the client’s business generally
  • Ability to interact with regulators and their staff to identify practical roadblocks and interpretations of regulatory provisions for a transaction
  • Ability to interact effectively with non client parties (they don’t pay you) such as the investee company (in case you are engaged by the acquirer)
  • Ability to collaborate within a hierarchical team
  • Ability to break the work down in appropriate units and delegate to juniors and interns to mentor them and to enhance output
  • Ability to understand the client’s eventual outcomes and incorporate that in the documentation process and strategy without specific instruction each time
  • Ability to identify concerns and “what-ifs” from time to time as a multi-legged transaction evolves over time and take initiative to present workable solutions for the client
  • Ability to give high quality, super-specialised advice
  • Ability to conduct due diligence exercises efficiently
  • Presentation of the client’s factual data, goals, legal and regulatory provisions together in clear ways to give clear opinion to the client of what is possible, what is not and how to achieve the results the client wants  
  • Knowledge and skills related to specific practice areas (Investment transactions, M&A, finance and banking deals, general corporate, projects, Technology Media & Telecom, dispute resolution etc)

In-house legal team specific skills

  • Ability to support various business functions in a company (eg. sales, marketing, R&D, Board of Directors, promoters) through legal advice, contracts and other legal work
  • Ability to build, manage and lead a team of lawyers and support stuff
  • Ability to instruct and manage external lawyers
  • Ability to track and manage specific outcomes of legal contracts and ensuring that the company gets what it bargained for
  • Ability to visualize standardized legal documentation and policies to reduce risk and protect the company’s interests
  • Ability to prepare and maintain different kinds of dashboards to report compliance and other strategic inputs for the management
  • Ability to identify the right local lawyers in different courts in multiple states and districts to engage for different kind of matters
  • Ability to have working relationship with different kinds of senior counsels to engage in appellate matters, writs and special leave petitions
  • Ability to engage law firms at a suitable price point for the company which provide required services

Litigation specific skills

  • Filing skills and dealing with the court registry
  • How to strategize the prayer and the most suitable interim remedies to protect the client’s interest and secure early relief
  • Drafting pleadings, applications and petitions
  • Counselling clients about legal strategy
  • Briefing senior counsels and collaboration with other litigators who are looking at other parts of the case
  • Ability to create and manage an effective team that supports your practice –  juniors and court clerks for your work at different forums
  • Creation of case strategy – which facts and interpretations should be used in which forum and which facts should be ignored to present your case in the best light
  • General investigation skills –  to find out facts and gather evidence to build a strong case
  • Project management skills – every case is a project that requires professional management
  • Ability to ensure through effective communication that a client experiences value and satisfaction through your work (most litigators do great work but have no time to communicate the value to a client and the client often experiences unavailability of the litigator and a high level of uncertainty in the matter)

How should we teach law in that case?

If the current legal education system is repeatedly failing, year after year, to provide training to law graduates that make them employable or ready for the legal industry, what can be done about it? This is exactly why my co-founder, Abhyuday, and I started platforms like iPleaders and LawSikho.

Here is why there is a legal education-employment bottleneck – every law student and young lawyer needs to thoroughly understand this.

I spoke about the bottleneck and the skill deficit in this article here, too.

Before I tell you how we go about it, let me tell you how we did it wrong for years despite identifying the right problem.

Biggest drawback of online education

If I give you a manual for swimming, and then you learn it by heart, and then I ask you to take an exam. You clear it with flying colours. Now, I give you a certificate with glowing swimming credentials. However, will you be willing to jump into the sea based on this knowledge?

The problem with online legal courses is the same. While law colleges failed to offer reasonable skill training, online courses commit a worse crime – they promise to fill the gap and then don’t.

We had anticipated the problem, and tried to bridge the gap through lucidly written material, videos, live webinars, question answer forums. However, year after year we saw that despite significantly improving our material, interface and engagement, a large number of students who buy online courses never finish the same. A majority of them appear for the exam, get the certificate, and still a large chunk do not even bother to do that.

That made us wonder – what could be the reason?

Law is hard. There is no denying that. It’s complex no matter how easy the language we use and how many mindmaps we create. It requires a lot of attention. It requires time. It requires discipline. And a lot of learners drop off somewhere, and simply give up. Many others just focus on somehow finishing the course, getting the certificate.

This is very concerning for us. It is true that we take the money upfront, and no matter how many people drop off we still had a steady flow of students. We always got a minimum of 10-20% success stories. A portion of the students always consist of diligent and disciplined students who properly finish the course, do all the assignments, follow instructions, get the mentorship they wanted in the first place, and bag amazing internship and job opportunities. They also spread the positive word of mouth about how much our courses helped them. That always attract more good students to come and take up our courses.

Still, 50-60% students failed to significantly benefit from the courses they paid for. This was our failure. Also, these people are likely to say negative things about the course. A few times I got comments that the course is not good enough or does not provide enough value for money. Then as concerned as I would be, I always find the number of such people and then call them up. Usually they turn out to be people who haven’t done our course or a student who enrolled but did not have the perseverance to go through the hard part of the course. While we understood that this is an online course, and we cannot chase people to complete their online courses or finish their exercises, to give the proper time required, it meant that we will never become the extraordinary educational organization we dream of becoming.

100% success rate is the holy grail of education. Just think of what made IIMs or NLS Bangalore famous. It was the 100% good placements! To reach that level, we have to ensure despite being an online education platform, we have to create 100% success rate.

Is that even possible? Probably not. However, to become a world class education platform, and to fulfill our ambition, we had to improve our game. The job of dreamers, entrepreneurs and hustlers is to turn the impossible into inevitable. So we started to figure that out. It took years of effort because we hit a solution that works.

What could be the solution? What do you think?

Here is what we do.

Provide study material ‘filled with insights’ for self study

We only care about actionable insights that can move you towards accomplishing an objective or arriving at a solution. We skip all the commentaries on sections, cases laws and jargons and cut to the chase, and answer practical questions you will have to deal with. Consider the following sets of questions:

Set 1

  • How can you do X?
  • When should you do Y?
  • What is the most optimal method to achieve Z outcome?
  • How can you save costs while accomplishing A?
  • How can you do B in the most expeditious manner?

Set 2

  • What is the history and origin of a particular concept?
  • What are the drawbacks of the definition in the statute?
  • Was a particular case correctly decided?
  • What is the difference between the judgments of different courts on a particular point?

Do you notice the difference between the two sets of questions? The kind of discussion that the first set of questions provokes is relevant to immediate reality, while that provoked by the second set of questions is academic. More people want and will be willing to pay you to get answers to the first set of questions.

Answering the second set of questions is not always as important, unless it helps us arrive at a desired outcome, or avoid an undesired outcome in reality. In fact, if you are interested, once you know how to answer the first set of questions, you can answer the second set on your own.

We are more interested in identification of how to achieve real life solutions and inquire into what the law is from that perspective.

This makes our courses lightweight, easy to study, and directly beneficial. Compared to a textbook, every hour you spend on this material gives you a lot more RoI (Return on Investment) and it is also easier to follow. Also, reading this material or watching the video is only a small part of the course. The real amazing part is the exercises and live classes, I will come to that next.

Self-study material that is capable of application

Most lawyers (even in big firms) do not have a habit of using detailed systems and processes (unless the firm provides them something in an exceptional case), with the result that there can be inconsistency in your work. If you draft 5 contracts every day, you might find that the contracts vary in content, uniformity and even quality. Any risks owing to a missing clause may not be discovered right then, but years later when there is a dispute. In fact, if you use a compare function, you will find differences.

We create study materials which are not just knowledge-based but can be used repeatedly to improve your quality of work and reliability in real-life. For example, in the Contract Drafting Diploma, we share an exhaustive checklist consisting of more than 25 clauses that ensures that every contract you draft is exhaustive.

Let’s take another example. We suggest lawyers to share an Information Requisition Form with clients when they want transaction-specific details about a contract from a client to capture detailed information accurately into the contract. Recently, one of our students who is a working professional pre-filled this and shared the form on his own initiative with his lawyer. The lawyer was surprised and moved at how it made his work easier – he had never seen a client share something like this.

Our intention here is that you grow yourself by using systematic methods of learning from the starting. If you do it for sufficient time, you will be able to build your own methods, systems and processes in new situations to get results you want. It will also make delegation more effective in future, when you decide to build a team, hire or groom juniors. 

Weekly exercises

The standard model of learning where a teacher gives a lecture in a class has a crucial drawback:

  • It does not require you to apply the knowledge you are learning
  • It puts your brain in a passive mode, so you may not always be thinking on your feet when you receive the knowledge

There is evidence of it at play – many of us love acquiring ‘gyaan’ but find it difficult to apply it. That’s not your fault, it’s because of how you have been conditioned!

We realized that there has to be minimal friction between acquiring knowledge and its application, otherwise the acquisition of knowledge and its application become two unconnected and uphill tasks.

We decided to provide simulation exercises every week that mimic the most-common and frequent (though not easy, some are fairly complex) situations someone would face in real life. When you solve these problems every week, your experience of knowledge acquisition and knowledge application is direct and connected. There is no friction. As a result, you acquire highly personalized insights which enable you to apply the learning repeatedly and with reliability in a future situation. Your brain says, “I have done this before”. You’ve been there and done that.  

Live feedback classes

We have been providing access to recorded videos and interactions with experts since 2012, but you are the observer there. We realized that personalized feedback is important, and this part of online education needs to be repeated for every batch of students.

We conduct weekly classes that give you feedback for the previous exercise you performed, and teach you relevant concepts for the next week’s exercise. From the feedback you and others get, you are able to identify multiple ways to improve and incorporate real-life situations in a contract.

This is important because in real life, you do not have only one correct answer. There can be multiple ways of approaching and solving a problem and achieving the same result. These feedback sessions enable you to see that happen, because different people tackle problems differently.

In one month, people who were mortified of writing contracts have started feeling confident and drafting fairly good clauses.  

Micro-Skills

We observed experts in action, and we realized that they all apply multiple sets of skills which they have acquired over time to arrive at a solution. When you face a real situation, the reason you find it complex and others don’t is because experts have a wider set of skills to choose from, sequence and combine, to get the result. In fact, that is the reason why your seniors at work can solve some problems very easily but you as a fresher cannot. Most of us who are good with performing tasks even turn blind to the fact that they have a lot more experience and practice than others.

We have drilled down to the most fundamental micro-skills involved in performing a task, and created exercises with the intention to impart these micro-skills. Gradually, these build in complexity. From time to time, students are also provided more complex exercises to give them the opportunity to apply different sets of micro-skills together.

In fact, an entrepreneur had once approached someone who was pursuing higher studies in cyber law to draft terms and conditions and privacy policies. She had then refused as she had had no real world exposure, but is now confident of taking up such work.

The post How to Teach Practical Aspects of Law for Career Success appeared first on iPleaders.

Media and Entertainment Law Diplomas In India

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This article is written by Mohona Thakur from Team iPleaders.

If you have a keen interest in the field of media and entertainment law, and have made up your mind about pursuing a career in it, a list of the only institutions across India that offer this programme may be handy!

Google for ‘top law schools for media laws’, you fill find a couple of sorry LLM guides with no relevant information.

The truth is, most law schools do not have this subject even as an optional. The reasons could be many. To begin with, media laws in itself isn’t an absolutely prominent field of law that too many lawyers show an inclination for. Although massive opportunities are arising on the back of a burgeoning media and entertainment industry, with many opportunities for lawyers opening up very fast, studies with respect to media laws is at its nascent stage. Besides, law schools do not have qualified professors with adequate knowledge in this area for them to offer this as a subject in the first place.

With the lack of the subject in any decent curriculums in law schools, there are a few law schools across the globe and online academies that have taken a step towards consciously building a curriculum in this area of law.

When it comes to a conscious academic or career choice, no one would risk gaining unreliable information. They would rather hear it from the horse’s mouth. I thought I would bring the horse to you, you could always have a word with it yourself.

Here is a carefully curated list of courses across India that offer the niche subject of media and entertainment laws (in varied forms) with the links to their website from where you can take it forward:

  • Diploma in Media and Laws by New Law College, BVP University, Pune

Eligibility: You must be a graduate from a recognised university in India or abroad.

Duration: 1 Year

Course Type: Full-Time

Examination Type: 80% Theoretical and 20% Internal Assessment

What’s in it for you – the good, bad and ugly!

For those of you looking for a diploma certificate by recognised law college, this may be a good idea. However, this course seems to have been launched recently. There is no available information about the course curriculum and structure. For more information on admissions, you can visit this page.

While the degree awarded is a diploma and comes from a NAAC accredited college, unless you are physically present in Pune, you shall not be able to pursue this course. If you’re in Pune and want to pursue a full time diploma, please do visit their college in Kothrud.

In addition, in order to pursue diploma, you need to have a graduate degree. Therefore, if you are a law student, in a five year law course, this is not an option for you.

  • LawSikho’s Diploma in IPR, Media and Entertainment Laws

Eligibility: You must have completed 10 + 2 from a recognised board in India or abroad.

Duration: 1 Year

Course Type: Online

Examination Type: 600 Marks, 100 Marks MCQ and 500 Marks Exercise & Assignment Based

What’s in it for you – the good, bad and ugly!

It’s a relatively new course that was launched in May, and the first batch is to commence from August. Therefore, it doesn’t have any alumnus as yet. But then, all the other courses are pretty new too.

What’s interesting is that this media law course has an overwhelming industry panel with people like Forbes 30 under 30 lawyers, lawyers presently practising in this space.

The course contains 16 modules and covers all aspects of the media industry – print, radio, broadcast, telecom, digital. They teach through interactive videos and also have study material in hard copy. In addition, apart from feedback sessions, the course endorses weekly exercises that teach hands on the kind of work that you will be required to do when you work in this space as a lawyer. You can see the course content here. There are total 50 classes throughout the year (once every week), which you can attend at night (8-9 pm on weekdays).  If you miss a class, you could watch the recording later. This is definitely very convenient for busy lawyers and law students.

Cherry on the cake? You can access this course anytime and sitting anywhere in the world, even on your cell phones. Double cherry on the cake? They provide sample material for their course, for you to see and decide. You can subscribe for the sample material here.

The course also promises to help you with internships if you are a law student, and with jobs if you are a lawyer based on your performance in the course which is a huge added advantage.

  • Post Graduate Diploma in Media Laws, NALSAR Proximate Education

Eligibility: Bachelor’s degree or equivalent from a recognised university

Duration: 1 Year

Course Type: Distance-Education

Examination Type: 90 Mark Theory Papers x 4 Modules and 40 Marks for mandatory attendance for classes

The brand name is possibly the only take away for this PG Diploma, apart from 4 fat modules on Media Laws in India. The modules cover widely four broad categories – policy and media law, constitution and media laws, convergence and advertising laws.

The eligibility criteria is a bummer as it doesn’t allow law students enrolled in the five year law course to apply (since they do not hold a bachelor’s degree).

The course was sold at INR 16,500 last year. However, the course requires the students to mandatorily attend classes that only take place in selected metro cities on specified dates twice during the year. The cities that the classes take place in are: Hyderabad, Mumbai, Delhi and Kolkata. In case you do not belong to these cities, it would be a choice you’d have to make between spending extra to get those 40 marks or opt out and lose on the 40 marks.

For more details on their admission procedure, you can visit their website here.

Presently, in India, these are the only three organisations offering a diploma in media laws. Very few law schools have come up with media laws as an optional paper. However, given the vast dimension that media and entertainment laws cover, a semester worth of studying can at maximum introduce you to the basics.

If you are serious about pursuing a career in this field, you shall have to take an extra effort and not only find internships in this field, but also continue enhancing your knowledge and skill set by pursuing media law courses that not only add a certificate to your resume but also value.

Good luck!

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The Complete Compliance Checklist under the Factories Act, 1948

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This article is written by Kanti, a student at the University of Delhi. In this article, she provides the complete compliance checklist under the Factories Act, 1948.

The Factories Act, 1948 is a social act which was passed to strengthen the position of workers, who are working in the factories across the country.

To whom does it apply?

This Act is applicable to all factories which have employed 10 or more than workers on any day of the preceding 12 months, engaged in manufacturing process being carried out with the aid of power or twenty or more than twenty workers are employed in manufacturing process being carried out without the aid of power.

Definition of factory

Section 2(m) of the Factories Act, 1948 defines ‘factory’ as any premises-

  • Where ten or more workers are working or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of the power, or is ordinarily so carried on, or
  • Where twenty or more workers are working or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of the power, or is ordinarily so carried on, but does not include:
  1. Mines subject to the operation of the Mines Act, 1952,
  2. A mobile unit belonging to the armed forces of the Union,
  3. Railway running shed or a hotel, restaurant or eating place.

Compliance Checklist under the Factories Act:

Under the Factories Act, the following compliances should be followed-

Section 6 and 7 (Licensing of Factory)

The occupier of the factory is required the previous permission from the State Government or the Chief Inspector in writing for the site on which factory is to be situated.

And to get a license, the occupier must send the notice under section 7 of the act to the Chief Inspector, at least 15 days before he begins to use the premise as a factory containing the following details

  • Name and address of the occupier
  • Name and address of the factory
  • Name and owner of the premise
  • Address for communication
  • Nature of the manufacturing process to be carried in the factory
  • Total horsepower to be installed
  • Name of the manager of the factory
  • Number of workers likely to be employed
  • Other particulars which may be prescribed

Chapter III (Health Provisions)

  • Cleanliness– Every factory must be clean and there should be no accumulation of dirt. Floor, windows, passage, benches of workrooms, staircase etc. should be cleaned on a regular basis with disinfectant.   
  • Disposal of wastes and effluents– the factory shall have proper arrangements for the treatment of wastes and effluents.
  • Ventilation and Temperature– the factory premises should have adequate ventilation by the circulation of the fresh air. The walls and roofs should be of such quality that temperature in the factory doesn’t rise beyond the reasonable conditions of comfort.
  • Dust and Fume– If the work carried in factories is such that dust and fume are released in substantial quantities, effective measures should be taken to prevent its accumulation in any workroom.
  • Artificial Humidification– If the humidity in any factory is increased artificially, the water used for this purpose should be taken from a public water supply or should be purified before it is used.
  • Overcrowding– No room in any factory shall be overcrowded to the extent that it becomes injurious to the health of the workers employed in the factory.
  • Lighting– The working area for the workers and the passage have adequate and sufficient light, natural or artificial or both.
  • Drinking Water– There should be suitable points in every factory which provide a sufficient supply of drinking water and the ‘drinking water’ shall be mentioned in the language understood by the workers.
  • Latrines and Urinals– Sufficient latrine and urinal accommodation should be there in every factory and they should be accessible to the workers all the time while they are present in the factory. The accommodation so provided should be separate for male and female with proper lights and ventilation.
  • Spittoons– Every factory shall have a sufficient number of spittoons placed at a convenient place. The spittoons should be clean regularly.

Chapter IV (Safety provisions)

  • Fencing of Machinery– Every moving part of a prime mover and every flywheel should be fenced securely unless they are safe to be used otherwise.
  • Work on Near Machinery in Motion– When it becomes necessary to examine any part of the machinery while the machinery is in motion, such task should be done only be a specially trained adult male worker wearing tight fitted cloth.
  • Employment of Young Persons on Dangerous Machines– Only a fully instructed person about the dangers arising in connection with the machine and precautions to be observed, shall be allowed to work on dangerous machines under the supervision of a person who is knowledge and experience of the machine.
  • Striking Gear and Devices for Cutting-off Power– An appliance should be provided and maintained to move driving belts to and from fast and loose pulleys.
  • Self-Acting Machines– No self-acting machine shall be kept in such a space over which any person is liable to pass.
  • The Casing of New Machinery– Every set, screw, bolt or key in all machinery driven by power and installed in a factory should be encased effectively to prevent danger.
  • Prohibition of Employment of Women and Children near Cotton-openers– Ia cotton-opener work is done by the factory, no woman or child should be employed for pressing cotton in such work.
  • Hoists and Lifts– Every hoist and lift should be sound, adequately strong and properly maintained.
  • Lifting Machines, Chains, Ropes and Lifting Tackles– All parts of lifting machines, chain, rope and lifting tackle should be of good construction, sound material and free from defects. They should be thoroughly checked by a competent officer at least once in 12 months.
  • Revolving Machinery– Revolving machinery shall be permanently affixed to or placed and there should be a notice indicating the minimum safe working area around the machinery.
  • Pressure Plant– If a factory is using any machinery which is operated at a pressure above the atmospheric pressure, then the pressure should be kept under check.
  • Floors, Stairs, and Means of Access– All floors, stairs, and passages should be properly constructed and maintained.
  • Pits, Sumps, Opening in floors etc.-If there is any vessel, tank or pit in the floor which may be a source of danger shall be securely covered or fenced.
  • Excessive Weight– No worker employed in the factory shall be made to carry or move any load which might cause any injury to him.
  • Protection of Eyes– If any process is carried out in the factory which involves a risk of injury to the eyes from particles or fragments, suitable goggles or effective screens should be provided to the workers who are working in such circumstances.
  • Precautions Against Dangerous Fumes, Gases etc.- No person should be allowed to enter any confined space until precautionary measures have been taken to remove such fumes and gases.
  • Precautions Regarding the Use of Portable Electric Light– No portable electric light of more than 24 volts should be used in any confined space or chamber or tank.
  • Explosive or Inflammable Dust, Gas etc.– All precautionary measures should be taken to prevent an explosion of gases which are likely to explode on ignition.
  • Precaution in Case of Fire– The factory should take all the practical measures to prevent the outbreak of fire and its spread, both inside and outside the factory. Safe means of escape should be in the factory for the persons, in case of a fire.
  • Maintenance of Building– The building of the factory should be maintained properly so that it does not cause any injury to the health of the workers.
  • Appointment of Safety Officer– In a factory, where the number of employers is more than 1000 than the factory is required to appoint a safety officer.

Chapter V (Welfare Provisions)

  • Washing Facilities– Separate and adequate facilities to be provided for male and female worker. The facilities should be clean and conveniently accessible.
  • Facility for Storing and Drying Clothing– The factory should provide a suitable place for keeping the clothes not worn during the working hours and for the drying of wet clothes.
  • Facilities for Sitting– The workers who are obliged to work in a standing position should be given proper suitable sitting arrangements during their rest hours.
  • First-aid Appliances– First-aid boxes or cupboards containing with necessary contents, should be maintained and provided during all the working hours.
  • Canteens– If the factory has more than 250 workers employed, minimum one canteen should be provided and maintained by the occupier.
  • Shelters, Restrooms, and Lunch Rooms- A factory having more than 150 workers should provide adequate and suitable restrooms and lunch rooms, with provision for drinking water.
  • Creches– If the factory employs more than 30 women workers, it should provide a suitable room for the use of children under the age of 6 years of such women.
  • Welfare Officers– If a factory has more than 500 employers, such numbers of welfare officers should be employed as may be prescribed.

Chapter VI (Working Hours of Adults)

  • Weekly Hours– Any adult worker should not be allowed to work in a factory for more than 48 hours a week. 
  • Weekly Holidays– No worker should be made work for continuously 10 days without any holiday. No worker should work on the first day of the week unless he has or will have a holiday on one of the 3 days immediately before or after the said day.
  • Compensatory Holidays– If a worker is deprived of any of the weekly holidays, he should be allowed take that holiday in that month or within the two months immediately following that month.
  • Daily Hours– No worker should be allowed to work in a day more than 9 hours a day. (Subject to the previous approval of Chief Inspector)
  • Intervals for Rest– The working hours of an adult worker should be set in a way that he doesn’t work for more than 5 hours without taking an interval for rest of at least half an hour.
  • Spread over– The working periods of an adult worker in a factory shall be arranged in such a manner that they do not work for more than ten and a half hours a day including the intervals for rest.
  • Night Shifts-If a worker works on a night shift, the hours he has worked for after the midnight should be counted in the previous day.
  • Prohibition of Overlapping Shifts– Not more than one worker should be given works of the same kind at the same time.
  • Extra Wages for Overtime– If any worker works for more than 48 hours in any week, he should be entitled to wages at the rate of twice his ordinary rate of wages.
  • Restriction on Double Employment– A worker should not be allowed to work in a factory if he is already doing work in one.
  • Notice of Periods of Work for Adults– A notice should be put every day clearly showing the periods in which adult worker may be required to work that day.
  • Register of Adult Workers– Every factory is required to maintain a register of adult workers showing the name and nature of the work of a worker.
  • Hours of Work to Correspond with Notice and Register– No worker should be allowed to work any work other than mentioned in the notice and the register.

Chapter VII (Employment for young persons)

  • Prohibition of Employment of Young Children– No child who is less than 14 years of age be allowed to work in any factory.
  • Non-adult Workers to Carry Tokens– An adolescent should not be allowed to work in a factory unless a certificate of fitness has been granted to him under section 69 of the Act.
  • Certificate of Fitness– A certifying surgeon can issue a certificate of fitness to an adolescent only when the manager of the factory and the guardian of the adolescent sign a document that he will be employed in that particular factory.
  • Working Hours for Children– No child should be allowed to work more than four and a half day in a day and should not be allowed to work in the night at all.
  • Notice of Periods of Work for Children– Every factory should display and maintain a notice every day for the periods during which children will be allowed to work.
  • Register of Child Workers– A register should be maintained in the factory mentioning the name of the child worker, the nature of his work, the group in which he is included, the shift of his group and his certificate of fitness. No child worker should be allowed to work in the factory unless his name is entered in the register of child workers.
  • Hours of Work to Correspond with Notice– No child should be employed in the factory otherwise in accordance with the notice of periods of work for children displayed in the factory.

An adolescent (both male and female) who has obtained a certificate of fitness can work in the factory only during the time period of 6 A.M.- 7 P.M.

Chapter VII (Annual Leave with Wages)

  • Annual Leave with Wages– Every worker who has worked for 240 days or more in a factory in a year should be allowed to have leaves with wages in the subsequent year.
  • Wage During Leave Period– A worker who has taken leave under section 79 or 80 of the act, shall be entitled to wages at a rate equal to the daily average of his total earnings for the day during the month immediately preceding his leave.
  • Payment in advance in Certain Cases– A worker who has been allowed leave for less than four days, in the case of an adult, and five days, in the case of a child, should, before his leave begins, be paid the wages due for the period of the leave allowed.     

In addition, the occupier a Health Register in respect of persons employed in occupations declared to be dangerous operation under section 87 of the Act.

  • Maintain a Bound Inspection Book.
  • Annual return to be filed on time.
  • Report form Health Officer.

Read the full Factories Act, 1948 HERE.

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How to update your Aadhaar Card Details

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This article is written by Ritu Rajput. 

Introduction

India has embraced an interesting ID framework ordinarily known as Aadhaar or Unique Identification number (UID) that would take into account every one of the necessities of individuals dwelling in India. An interesting 12-digit number which is issued to each inhabitant living in India in view of their statistic and biometric information. The government initiated this step with an intention to set up a system to put an end to duplicate/fake identities supported by verification and authentication in a cost-effective manner.

Aadhaar has the following components

Name of Aadhaar Issuing Authority   Unique Identification Authority of India
Aadhaar Customer Care Number 1947
Inception of aadhaar Card September 2010
Validity of Aadhaar Card Lifetime
Number Of Enrolments 120 crore (approximate)

(Source of Information)

Aadhaar Details That can be Updated

Demographic Information Name, address, Date of birth/Age, Gender, Mobile Number, Email Address, Relationship Status and Information Sharing Consent
Biometric Information Iris, Fingerprints and Facial Photograph

Demographic Data Update

  • Changes in life events such as marriage may prompt residents changing their basic demographic details such as name and address. Address and a mobile number could also change due to change or relocation to fresher or to newer areas. Occupants/residents may also want changes in their relative’s details due to changes in life events. Also, residents could have other reasons to change their mobile number, email address etc.
  • Any error or mistakes made during the enrolment process wherein the resident’s demographic data may have been captured incorrectly. Changes to “DOB/Age” and “Gender’ fields are expected primarily due to enrolment errors.
  • Where the inhabitant may want to change the local language of enrollment to another that he/she prefers from the existing language. Then, all the demographic information that is printed on Aadhaar letter will need to be updated in the new local language.
  • UIDAI may likewise ascertain the availability of POI (Proof of Identity), POA (Proof of Address) and other documents collected at the time of enrolment/update. It notifies the resident to update their demographic information and to submit the required archives if there is any problem.

Biometric Data Update

  • Age <5 years at the time of starting enrolment – Providing with all the biometric data, the child should be re-enrolled when he/she attains an age of 5 years. A deduplication would be done for the child at this stage.
  • Age between 5 and 15 years at the time of enrolment – The resident should furnish all biometrics for updates when the resident attains an age of 15 years.
  • Age >15 years at the time of enrolment – Residents are prescribed that they should update their biometric data after every 10 years.  
  • UIDAI also verifies the quality of biometric which is captured during enrolment/update. All the residents whose biometrics are below the decided threshold level are to be notified by UIDAI to update their biometrics.

Modes of Update – Online & Offline Aadhaar correction

Online Aadhaar correction

Step 1

First, go to official Aadhaar Card Update Portal

Step 2

Then click on Update Aadhaaar Button.

Step 3

Next, you will get to a new page with a link:  

https://ssup.uidai.gov.in/ssup-home#/ and then on the bottom of the similar page you see “To submit your update/correction request online please Proceed.”  

Step 4

This link will redirect you to aadhaar Card Update Portal.

Note: Check the instructions here by UIDAI for residents who used the Aadhaar web portal.

Step 5

At the point when the page will be opened, there you will see an alternative requesting your Aadhaar card number. Enter your 12 digits Aadhaar number and tap on “Send OTP”. You will get One Time Password on the registered mobile number with UIDAI.  

Note: This is valid only for 15 minutes.

Step 6

Enter OTP in the required field and tap on “Login”.

Step 7

Now you will see different choices like Name, Address, Date of Birth, Mobile Number. Tick the choice you want to update and tap on Submit Button.

Step 8

Enter new updated information and click on “Submit Update Request” button.

Step 9

Then, cross check all the details again and have a look if they are precise or not. If all the details filled by you are precise, tap on “Confirm” button and then “Proceed”. In case, if you’ve mistakenly entered anything wrong then click on “Modify” button so you can modify the desired data.

Step 10

Further, you have to upload all the documents after scanning them so that all the verification can be done to the modifications you requested for your Aadhaar card. Once all the documents are uploaded, tap on the Submit Button.

Note: Make sure that uploaded documents should have the same information that you are asking for. The uploaded documents should be attested self-signed. The documents can be in PDF, Microsoft Word or jpg format.

Step 11

You will see “Your update request has been successfully submitted.” Your Update Request Number (URN) is 0000/00986/96XXX” on your screen. You will also get a confirmation message and Update Request Number on your registered mobile number.

Note: Make sure to note down this URN number because it will help you to track the status of Aadhaar Card Update. You can also download the acknowledgementt slip by clicking on “Download File” button on this page.

Step 12

At last, tap on the “Logout” button.

Offline Aadhaar Correction

Step 1

Firstly visit Aadhaar Card Update Portal.

Step 2

Next click on Download Form button.

Note:

  • Check the directions here by UIDAI for residents who will send the update request by post.
  • It’s necessary to fill a form in capital letters only and write the working mobile number.
  • Whatever data you want to get updated whether it is your name, address, Date of Birth or anything add self-attested photocopies of the documents.
  • You’ve to fill the form in English as well as in local language.

Step 3

On each attached document do write your 12 digit Aadhaar Update that is issued to you by UIDAI.

Step 4

You should seal the envelope properly and do write “Aadhaar Update/Correction” on the envelope and it should be in clear letters.

Step 5

Here are the addresses where you can post the document.

Address 1:

UIDAI

Post Box No. 10, Chhindwara,

Madhya Pradesh – 480001, India

Address2:

UIDAI

Post Box No. 99, Banjara Hills,

Hyderabad – 500034, India

Step 6

You will receive an intimation of the update request receipt when it is received.

Step 7

For the update of your mobile number, the notification for the update will be sent to the given mobile number.

Note: If you want to track your Aadhaar card update status, click here to check the steps.

Documents required for updating or correcting Aadhaar Card details

Documents required for Proof of Identification
  • Passport
  • PAN Card
  • Ration/PDS Photo Card
  • Voter ID
  • Driving license
  • Government photo ID card/service photo ID card issued by PSU
  • NREGA Job Card
  • Photo ID card issued by a recognized educational institution
  • Arms license
  • Photo Bank ATM card
  • Photo credit card
  • Pensioner photo ID card
  • Freedom fighter photo ID card
  • Kissan Photo Passbook
  • CGHS/ECHS Photo card
  • Address card having name and photo, issued by the Department of Posts
  • Certificate of identity having photo issued by Gazetted Officer or Tehsildar on an official letterhead
  • Disability ID card
Documents required for Proof of Address
  • Bank statement or passbook
  • Post office account statement or passbook
  • Passport
  • Ration Card
  • Voter ID
  • Driving license
  • Government photo ID card/service photo ID card issued by PSU
  • Electricity bill, water bill and telephone landline bill (must be recent and not over 3 months old)
  • Property Tax receipt (must be recent and not over 3 months old)
  • Credit Card statement (must be recent and not over 3 months old)
  • Signed letter having a photo from a bank on the letterhead
  • Caste and Domicile Certificate with photo issued by State Government.
  • Disability ID card/handicapped medical certificate
  • Gas connection bill (should be recent and not over 3 months old)
  • For minors – passport of parents
  • Pensioner card
  • Freedom fighter card
  • Arms license
  • Kissan passbook
  • Signed letter having photo issued by recognized educational institution on letterhead
  • NREGA job card
  • CGHS/ECHS card.
  • Certificate of address having photo issued by MP/MLA/Gazetted Officer/Tehsildar on letterhead
  • Certificate of address issued by village panchayat
  • Income tax assessment order
  • Vehicle registration certificate
  • Registered agreement of sale, lease, or rent
  • Photo identity card issued by Department of Posts
  • Signed letter having photo from registered company on letterhead
  • Insurance policy
  • Passport of Spouse
  • Marriage Certificate issued by the Government containing address
Documents required for Date of Birth
  • Birth Certificate
  • SSLC Book/Certificate Passport
  • Certificate of Date of Birth issued by Group A Gazetted Officer on letterhead
  • PAN Card
  • Marksheet issued by any Government Board or University
  • Government Photo Id Card / Photo identity card issued by PSU containing DoB
  • Central/State Pension Payment Order
  • Central Government Health Service Scheme Photo Card or Ex-Servicemen Contributory Health Scheme Photo card
Documents required for Proof of Relation to Head of Family
  • PDS Card
  • MNREGA Job Card
  • CGHS/State Government/ECHS/ESIC Medical card
  • Pension Card
  • Army Canteen Card
  • Passport
  • Birth Certificate issued by Registrar of Birth, Municipal Corporation and other notified local government bodies like Taluk, Tehsil etc.
  • Any other Central/State government issued family entitlement document
  • Marriage Certificate Issued by the Government

When to Update Aadhaar Card

  1. Change in Name, Mobile number, and Address.
  2. Errors in details during Enrolment Process.
  3. Updating the Local Language.
  4. UIDAI demands documents like proof of identity, proof of address and others.
  5. A child may be enrolled in the Aadhaar Scheme when they are below the age of 5. However, once they attain 5 years of age, they need to be re-enrolled. Once a child crosses 15 years of age, it is important to update all the biometric information. All the residents should update their information every 10 years.
  6. In case of an accident or if a person suffers an illness that may impact their biometric proof, the resident should apply for Aadhaar Update.
  7. Incorrect Biometric Capture, quality of biometrics are below the decided threshold, or in case of authentication problems.

Unique Identification Authority of India (UIDAI)

The statutory body for Aadhaar is The Unique Identification Authority of India (UIDAI), Government of India. UIDAI was established in 2016, under the Ministry of Electronics and Information Technology (MeitY) with a mission to provide good, efficient and transparent governance to the people of India.

Function

  • As of now, it is obligatory to interface the PAN and bank account with the Aadhaar.
  • An online, as well as offline platform, is provided by UIDAI to provide services to people.
  • The services range from updating the details of the registered person to correction of data, checking the status of orders raised. To avail these services on an offline platform, an individual may visit an enrolment center with the required documents and have the issues resolved.

Role

  • To create approach, strategy and framework for issuing Aadhaar number to people who request for the same by submitting, their demographic information and biometric information by undergoing the procedure of enrollment.
  • To guarantee security and confidentiality of identity information and authentication records of people.
  • To ensure compliance of Aadhaar Act by all individuals and agencies.
  • To make regulations, rules and various other guidelines consistent with the Aadhaar Act, for carrying out the provisions of Aadhaar Act.

Conclusion

The Aadhaar program was introduced in 2009. Since then, a lot may have changed – you may have gotten married (changed surnames), moved to a different city or locality or even lost/changed your mobile number.

The Aadhaar Enabled Payments System (AEPS) is currently in its initial stages. You can use your Aadhaar Card to authorize payments that will require your biometrics – fingerprint and iris scan. So, it is very much important to update your Aadhaar Card. Updating your Aadhaar card is important because the card could replace your regular or credit cards soon.

The post How to update your Aadhaar Card Details appeared first on iPleaders.


All You Need To Know About Writing For iPleaders Blog

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This article has been written by Ramanuj Mukherjee, CEO, iPleaders

Why should you publish on iPleaders blog

Are you a lawyer looking to publish your insightful articles? A law student looking for a break to publish your college projects that you have converted into articles? Are you a regular legal author and commentator looking for a platform where you can reach out to a large number of discerning legal readers? If you have written an article on law, legal career, legal industry, lifestyle of lawyers, law colleges or even life on campus, iPleaders blog will be happy to publish your article as long as it is original, unpublished and exclusively published on iPleaders blog.

The biggest reason to publish your article on iPleaders blog is the massive and targeted reader base. If you want to publish your article before a huge audience of lawyers, law students, other professionals with an interest in law, then there is no bigger platform that you can find in India, and perhaps even the world.

We run each submission through plagiarism and grammar check software, and if there are either language mistakes or more than 30% unoriginal content, we reject the article without further enquiry. We do not send any rejection reports given the massive number of submissions we receive every week. However, if your article is not published within a week and you do not hear from us, the article is in all probability rejected. We try to publish articles within 72 hours of submission. Sometimes, it goes upto 7 days in holiday season.

Below, we will explain all the things you need to know if you want to submit an article to iPleaders. But first, let us tell you about what is iPleaders and how is the blog doing.

About iPleaders

iPleaders is India’s largest legal blog and online legal education company. iPleaders blog has reached an iconic status amongst those looking for answers to specific legal questions, with over 60 lakh individuals using over the course of a year. It is followed by a large number of lawyers and law students for getting regular legal updates and knowledge.

Here is the Alexa rankings of iPleaders blog, Mondaq.com, BarandBench.com and LegallyIndia.com, showing that iPleaders blog enjoys far more traffic and attention. These graphs will also show that iPleaders blog is growing fast, with a graph growing straight up, while other graphs meander, or plateau. These screenshots were taken on the Alexa website in May 2018. Since then, iPleaders blog has grown even more!

iPleaders Blog: Alexa India Rank 3,517

Legally India: Alexa India Rank 9,924

Mondaq: Alexa India Rank 6,008

BarandBench: Alexa India Rank 8,462

Livelaw is the biggest online legal website today, thanks to fantastic legal news coverage. At iPleaders, we can easily increase our traffic with legal news. However, focussing on legal articles, answering legal questions and making legal information accessible, we have chosen to stay away from high traffic genres like news, jobs and internships. The advantage of this approach is that we get a very high quality traffic looking for a specific kind of information. While this traffic is harder to build, it is also more rewarding. This makes iPleaders blog a very interesting destination for lawyers and law firms to showcase their knowledge and expertise to a specific kind of audience.

What is iPleaders

iPleaders runs India’s largest online legal education platform and offer over 30 courses currently running, and over 4000 enrollments a year through our online legal education website and mobile app LawSikho.

We have a pan India presence through 3 offices in Delhi, Kolkata and Goa, and full time employee as representatives in several important cities such as Bangalore, Pune, Mumbai. We have a strength of over 30 full time employees who design, deliver and market online courses including an in-house technology team creating breakthrough learning technology. Two third of our employees are qualified lawyers committed to change the landscape of legal media and education in India.

iPleaders Blog: growing 300% year on year

A major focus area of iPleaders has been creating access to legal knowledge and insights through blogging. We publish articles that help not just law students and lawyers but also the layman to understand the law and the practical implications of it.

iPleaders has a large media outreach in the legal community, with over 28,000 unique visitors per day on the iPleaders Blog (and over 7 lakh unique visitors per month). With over 5 minutes on an average spent by every reader on the blog and 2400+ authors, we command a large following as the leading source of reliable legal information in this space.

We’ve been recently ranked as the 3rd best legal blog in India by FeedPost. We maintain an average of publishing about 13 articles every week. Here is the latest analytics data of our blog which shows that we have had over 5 Million unique users over a period of one year as of 19th May:

The story behind iPleaders blog

iPleaders blog was started in 2009 by Ramanuj Mukherjee and Abhyuday Agarwal while they were still law students at NUJS, Kolkata. The blog grew over the years in both quality and quantity. Amartya Bag, former editor of the blog and Anubhav Pandey, the current editor has made major contributions towards making the blog successful.

There was a time when we used to publish one article a day. Then it become one article every month. Now we get some many articles every day that we cannot possibly even process all of them.

iPleaders blog is run by volunteers and some financial support from LawSikho.com. It is not a commercial venture to make a lot of money, but a passion project to make a massive amount of quality legal information and insights available to the people. However, we certainly do hope to make enough money someday to sustain the blog’s growth, a permanent staff and expansion.

How to submit your articles

All you need to do is visit this link and submit the article. It is a simple interface. If you are not logged in, the system will ask you to log in. If you are not yet a registered member, you have to register yourself first, then login, and then you can submit your article.

Promotional articles are chargeable

If you want backlinks to various landing pages, your own website or promote a product or service, we charge for the same. If you submit such an article, it will not get approval. For this kind of articles, simply contact ramanuj@ipleaders.in. We will take a small and reasonable fee for such a promotional article.

What is the standard expected

We get hundreds of article submissions every month, and most of them get rejected for bad language or low quality. We expect articles to be of a high standard. Perfect English is expected, and good quality legal analysis is necessary. There must be some value for the readers in the article to take away, otherwise it is futile to publish an article.

Here are some of the very popular articles (which have been read tens of thousands of times):

How to get a gun license

How to file a cyber complaint

How to negotiate rent agreement or lease agreements

Law firms that pay highest salary in India

We will not publish very short articles. Articles that have at least 1200 – 2000 words are preferred. There must be substantial information, analysis etc. However, do not just copy paste judgments and statutes to increase word counts. That will show as over 30% non original content on plagiarism software and such articles will be summarily rejected.

Also, we expect the article to be legally correct and justifiable. Unjustified, unestablished claims will not get published.

What to keep in mind while writing for iPleaders blog

  • Plagiarism will not be tolerated. We will reject all articles that have more than 30% unoriginal content.
  • If you borrow an idea or information, please mention the source.
  • After you publish the article with us, do not publish it elsewhere. When you publish on iPleaders blog, you agree to give us an exclusive license to the article. You can publish the link on linkedin, or even the first para on Linkedin pulse, but do not publish the whole article there.
  • Take topics that have reader interest. That way you can ensure maximum exposure of your article.
  • Articles published on iPleader blog always rank very high, as Google considers our platform a source of highly relevant legal information. So apart from our regular readers, all those who google the topic will get to read your article from iPleader blog over the years.

How to write an article that gets maximum traffic

  • Choose your topics carefully. Write on topics about which many people are curious, or things that are increasing in relevance. For example, regulation of cryptocurrency is a great topic to write on, because many people are getting interested in it. It is also a great idea to answer specific questions that many people would be having, such as:
    • How to file a consumer complaint?
    • What can I do if I see someone is illegally cutting a tree?
    • How can I file a writ petition?
    • What are the different stages in a criminal trial?
    • What can I do if I am falsely accused of a crime?
  • Remember that the heading is very important. If you have the right headline, it will attract the right crowd. Try to convey the real value of your article through the headline. Always try to write about practical questions and highly relevant issues in your areas of expertise.
  • Make sure that your article answers as many questions related to the topic as possible, but especially those questions that people commonly have – such as contact details, costs, timelines, steps involved in doing something, common mistakes, FAQs. Your article should ideally cover the FAQs. This kind of articles tend to rank high on google rather than general treatise or analysis. Remember, when people who will read your article get the answers they are looking for, they will be delighted and spread the article further. That is how you gain a large audience over time. Google will also be happy to send more traffic to your article because the readers like it.
  • Instead of writing large chunks of text, please try to write in short paragraphs, include tables, as many headings and subheadings as possible, and bullet points. Such articles are favourably considered by the search engine algorithms of Google as such content is always easier to read.
  • Edit and proofread your articles before sending. Cross check facts, grammar, law and claims you make. Not doing this can lead to summary rejections. Here is how to edit your own article. Do read this.

Useful guides and resources

Start by reading this article that explains the entire process of writing a legal article without wasting time in unproductive pursuits.

A great and very long guide on how to write a kickass blogpost that actually grabs attention. This is all you will need to read on this subject.

Here is how to ensure that your blogpost ranks on top 10 in google search every time.

Well, that’s it. You really don’t need to read or research more than this. It is fine even if you don’t read all of these right at the beginning. What is the most important thing then? That is to write frequently, again and again. Every day if you can. Or once a week. Less than that is not nice at all. The best results come through only when you write regularly. I for example, set aside time to write every single day. Usually it takes me 2 days to write an article, but what mileage I have got from these articles in my career! That will be another story.

All the best!

The post All You Need To Know About Writing For iPleaders Blog appeared first on iPleaders.

Abuse of Intellectual Property Rights

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In this article, Kopal Tewary of Rajiv Gandhi National University of Law discusses abuse of Intellectual Property Rights.

Introduction

Intellectual property (IP) is the intangible creation of the human intellect. The domain of Intellectual property is very vast, covering novel ideas, innovative creations, unique designs or methods of development, literary and artistic works etc.

Intellectual property Rights (IPR) are the rights assigned to the creators of intellectual property regarding its exclusive use. When conferred, IPR empowers the creators to prevent others from using or tampering with their products without their prior permission or authorization, by taking legal action against them.

Need and Emergence of IPR

The concept of IPR is not a recent one. Its emergence can be traced back to the Renaissance Era. A Venetian Law regulating trade protection and the conferment of copyright to Johannes Gutenberg for the first ever printing press can be cited as the rudimentary stages in the development of modern laws on IPR.

The 19th century saw a series of new discoveries and inventions, coupled with a rapid increase in the production of mechanised products with the help of new advanced technologies.

As competition in the market increased, a need was felt to curb the malpractices that emerged simultaneously such as to prevent the opportunists from benefitting from the creations of individuals, counterfeiting, taking unfair advantage of the goodwill of a business, etc., and, at the same time, to grant certain privileges to inventors so as to reward and encourage innovations.

The TRIPS (Trade Related Intellectual Property Rights) Agreement, signed under the aegis of the World Trade Organization in 1995, is by far the most comprehensive agreement on intellectual property rights. The areas of intellectual property that it covers are:

  1. Copyright and related rights
  2. Trademarks, including service marks
  3. Geographical indications
  4. Industrial designs
  5. Patents
  6. Layout- designs (topographies) of integrated circuits
  7. Undisclosed information, including trade secrets
  8. Control of Anti-Competitive Practices in Contractual Licenses.

Abuse of Intellectual Property Rights

Intellectual property abuse, basically, is a defence for a suit of IP infringement. When such defence proves to be justified in a case, then the defendant is spared from the liability of granting immediate relief to the plaintiff. However, the misuse doctrine does not prevent the party to rely on the courts in case of any future infringement. The intellectual property owners may return to court once they have “purged” the misuse, for example, by striking anti-competitive provisions in their licensing agreements.

A transparent and somewhat definite legal and judicial take on abuse of intellectual property rights has largely remained limited to patent misuse, later extending to copyright misuse, which branched out of the former.

Both trademark and trade secret misuse are still subjects of academic debate and lack any practical application in courts.

Different forms of Intellectual Property Rights abuse have been elaborated under the following heads:

Patent misuse

At times, patent owner wrongfully uses the patent surpassing its legitimate scope. Patent misuse is the unjustified use of the acquired patent rights. Examples of patent misuse include illegal tying of products and services to the patented invention, price fixing, fraudulently making the customers pay royalties on items the patent of which has expired, and the like.

The concept of patent misuse first surfaced in the case of Adams v Burke, decided by the US Supreme Court in 1873. The court held that after the first authorized sale of a patent product by the patentee, the product becomes the complete property of the purchaser, rendering the patentee devoid of his monopoly rights over the product. Subsequent purchasers acquire the same rights over the product as the seller had, and may use it in the same way the owner could have used. This came to be known as the exhaustion doctrine.

However, in the 19th century, not many facets of patent misuse were acknowledged by the judges. In the famous case of Henry v. A.B. Dick Co, the United States Supreme Court upheld the validity of licensing the use of tied or other related products along with the originally patented product. Usually known as the Inherency doctrine, this theory states that it was the inherent right of a patent owner, in lieu of his having exclusive rights over his product, to exercise the right to license the product on any terms and conditions he chose.

In 1917, the United States Supreme Court overruled the A.B. Dick case in Motion Picture Patents Co. v. Universal Film Mfg. Co. In this case the Supreme Court held that ‘the scope of every patent is limited to the invention described in the claims. The patentee can claim nothing beyond them.’ It condemned the licensing of materials which formed no part of the patented invention and were merely necessary for its operation.

In Brulotte v. Thys Co. (1964), the United States Supreme Court held that a patent holder’s attempt to collect royalties beyond the term of the patent constitutes misuse of the patent.

An essential condition for using patent misuse defence is that it must hamper the competition in the market.

When a company accuses a patent owner of misuse, then the allegation must fulfill 2 conditions:

  • The valid patent was used as a way to change business outcomes
  • The anti-competitive effects extended outside of the patent’s scope

The patent misuse doctrine requires that the alleged infringer show that the patentee has impermissibly broadened the ‘physical or temporal scope’ of the patent grant with anticompetitive effect. Patent misuse does not affect a patent’s validity.

Since the 20th century, there have been significant developments through various legislations and judicial decisions that have further broadened the scope and understanding of the patent systems so as to eliminate the loopholes and make it more user- friendly.

Copyright misuse

Copyright misuse occurs when a company or an individual makes unjustified use of a copyright which is beyond its legal capacity and in violation of the Copyright Act of the concerned country. A copyright owner could commit misuse by violating any public policy choices embodied in the Copyright Act, such as by using a license agreement to extend the length of its copyright monopoly. Copyright misuse can also occur when the assertion of copyright is aimed at suppressing speech.

It is believed that Copyright misuse derives its basis from patent misuse as, while patent abuse finds mention in various cases since the 19th century, copyright misuse found recognition in the legal fraternity only a few decades ago.

Morton Salt Co. v. GS. Suppiger (1942) case, decided by the United States Supreme Court, laid the foundation of the concept of copyright misuse. While the reasoning given by the court refers to patent misuse, the commentary and the dicta address the issue of copyright misuse.

In Alcatel U.S.A., Inc. v. DGI Technologies (1999), it was held that the defense of copyright misuse has its historical roots in the unclean hands doctrine, i.e, which means that the suit of infringement filed by the plaintiff, who himself has abused the privilege conferred upon him by the copyright, is not itself justified. In the instant case, the Court found copyright misuse where the holder of a copyright in software licensed its use on the condition that the licensee also use it only in conjunction with the copyright holder’s hardware. It prescribed the use of the copyright to secure an exclusive right or monopoly, which is not granted by the Copyright Office of a country and which is contrary to public policy to grant.

Upon the improper use of a copyrighted work, the work will provide no copyright rights to its owner. In order to retain the rights, it is important that the activity constituting the misuse must be ceased.

In the case Tekla Corporation v. Survo Ghosh, decided by the Delhi High Court on 16th May 2014, Justice Endlaw of the Delhi High Court held that “copyright misuse does not constitute a legitimate defense for copyright infringement in India.”

Patent trolls

Patent Trolls, formally known as ‘Non-Practicing Entities (NPEs) or Patent Assertion Entities (PAEs)’, are companies which tend to earn a fortune from frivolous patent infringement lawsuits. While normal companies use their patents to protect their product from being counterfeited and sold in the market, patent trolls often acquire patents cheaply from bankrupt companies and, instead of using such patents in operations, these companies charge hefty licensing fees on other persons or businesses which appear to infringe any of their acquired patents.

Fees can range from ten to hundred thousand dollars, whereas patent lawsuits can cost the individuals or companies in millions. Hence, when such are the costs, many companies prefer to concede and settle, even if they believe there to be no patent infringement.

This practice is a lucrative option for making money with minimal risks. Small mobile and software companies, mostly startups, are most vulnerable in this case and an easy target of patent trolls.

According to the RPX Corporation (RPXC) “NPE Litigation Report,” around 4,500 patent infringement lawsuits were filed in 2014. Out of those, patent trolls were responsible for 2,791 cases, i.e. 63% of the total, whereas actual operating companies filed only 1,667.

A landmark case that came as a relief for companies in the United States, as it would mitigate the threat of phoney patent suits, was decided by the United States Supreme Court recently. The Court, in TC Heartland v. Kraft Foods (2017), unanimously ruled that patent cases should be tried where the defending company is based, rather than in a court of the plaintiff’s choosing. Until now, patent cases could be heard anywhere throughout the country, causing the companies to find the courts where the odds would be in their favour, often resulting in biased results and over burdening of certain courts.

However, not all the suits filed by patent troll companies are a hoax.

According to Bloomberg, Apple was ordered by a federal court in Texas to pay $502.6 million to a patent troll called VirnetX in April 2018, in an eight-year-old legal battle over FaceTime and iMessage patents. Apple and VirnetX had been fighting in court since 2010, when the patent-holding company alleged that Apple infringed on four of its patents related to internet-based communications.

Way to combat patent trolls

In order to allay the threat of patent troll litigation, companies can hire ‘patent-tracking companies’ on an annual-fee basis. They acquire information to track down the potentially disputable patent rights before their acquisition by patent trolls to be used against companies.

Tax Avoidance

According to Prof. Andrew Blair-Stanek of University of California, Multinational Corporations use Intellectual Property (IP) to avoid taxes on a massive scale, by transferring their IP to tax havens for artificially low prices. Read more

He states that there are two main reasons which make acquired intellectual property rights ideal for tax evasion.

  • First, unlike workers or physical assets like factories or stores, IP can easily be moved to tax havens via mere paperwork.
  • Second, the uniqueness of every piece of IP makes a precise fair market value nearly impossible to establish, allowing multinationals to justify low valuations that result in the least tax. Virtually all IP-based tax-avoidance schemes involve assigning an artificially low price to a piece of IP at some point in time.

Competition laws

Competition policy consists of a set оf laws and regulations and policies that promotes free and fair competition іn markets and aims to prevent anti-competitive business practices аnd unnecessary government interventions, avoiding concentration аnd abuse оf market power. As such, competition laws and IPR may seem inherently contradictory to each other, as while Competition law prevents artificial entry barriers and seeks to remove monopolization оf thе production processes by encouraging entrance іnto industries by new players, IPR promotes the concentration of monopoly power in the hands of few.

However, when looked from a broader view, these two laws have always complemented each other in their implementation. In order to understand the complications in applying competition law and IPR simultaneously, it is important to analyse the laws adopted by several countries and how they have framed their legislation in order to counter these problems.

Harmonization of IPR and Competition Laws: TRIPS

While the negotiations over the TRIPS Agreement were going on, many countries expressed their serious concern over the regulation of unfair competition and abusive monopoly powers of the IP rights holder.

Subsequently, after much deliberations, Article 40 of the TRIPS agreement was inserted to address the issue of IPR misuse and combat it through necessary government intervention:

Article 40

  1. Members agree that some licensing practices or conditions pertaining to intellectual property rights which restrain competition may have adverse effects on trade and may impede the transfer and dissemination of technology.
  2. Nothing in this Agreement shall prevent Members from specifying in their legislation licensing practices or conditions that may in particular cases constitute an abuse of intellectual property rights having an adverse effect on competition in the relevant market. As provided above, a Member may adopt, consistently with the other provisions of this Agreement, appropriate measures to prevent or control such practices, which may include for example exclusive grant back conditions, conditions preventing challenges to validity and coercive package licensing, in the light of the relevant laws and regulations of that Member.

Article 40 of the Agreement empowers the member countries to specify any exploitation of monopoly rights and adopt such laws that may be necessary to curb the abuse of IPR.

Compulsory Licensing

According to World Trade Organisation,

Compulsory licensing is when a government allows someone else to produce a patented product or process without the consent of the patent owner or plans to use the patent-protected invention itself. It is one of the flexibilities in the field of patent protection included in the WTO’s agreement on intellectual property — the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement.

The right over the product still rests with the owner, who is entitled to royalty by the users. This is an effective statutory measure to deter complete control of the owner over the unfettered use (or misuse) of the product.

Article 31 of the TRIPS agreement provides for the grant of compulsory licensing under certain exceptional situations such as national emergency or other circumstances of extreme urgency or inadequate exploitation of the patent in the country.

Conclusion

Intellectual Property Rights have so far proved to be a boon for mankind by promoting inventions and rewarding intellect, thereby spurring economic growth and by creating new jobs and industries. According to WIPO:

An efficient and equitable intellectual property system can help all countries to realize intellectual property’s potential as a catalyst for economic development and social and cultural well-being. The intellectual property system helps strike a balance between the interests of innovators and the public interest, providing an environment in which creativity and invention can flourish, for the benefit of all.

However, abuse of such rights may undermine the spirit and defeat the purpose of granting them. Their misuse yields nothing but increased costs, mental stress, tainted reputation and depleted growth of businesses.

References

The post Abuse of Intellectual Property Rights appeared first on iPleaders.

Special Status of Jammu & Kashmir

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In this article, Alankrita of NUSRL discusses the reason behind special status of Jammu & Kashmir.

Historical Background

Jammu & Kashmir has the contrast of being the only state in the Indian Union that negotiated in terms of accession. The then ruler (Maharaja Hari Singh) of Jammu & Kashmir at the time of independence from the British rule decided not to join either India or Pakistan and thereby remain independent. But then after 2 months on 6th October 1947, the border areas (some of which is now called PoK) of Jammu & Kashmir were attacked by the Azad Kashmir Forces supported by the Pak Army. Subsequently, after the attack, the ruler decided to join India because of their own lack of Army and Weapons. So in October 1947, accession was made by the ruler considering certain promises made by Pt. Jawahar Lal Nehru(The then Prime Minister of India). It was the aftereffect of these promises that Article 370 was included in the constitution of India. And only matters related to Defense, Foreign relations, Communication and Finance of Jammu & Kashmir comes under the jurisdiction of Constitution of India.

Thus, the special power and autonomous status give the state of J&K the right to have its separate constitution and flag, unlike others.

What is a Special Status?

A State is said to have special status if all the provisions of a Union don’t apply to that state. Different states may have different provisions. Article 370[1] of the constitution of India gives such special status to the state of Jammu and Kashmir. Article 371 of the Indian Constitution provides special status to 10 other states which are Assam, Nagaland, Sikkim, Manipur, Mizoram, Goa, Andhra Pradesh, Arunachal Pradesh, Maharashtra and Gujarat.

What is the special status of Jammu & Kashmir?

As the ruler of Jammu & Kashmir entrusted only four matters i.e. Defense, Foreign Relations, Communication and Finance to the dominion of India and hence there is a limitation put on Parliament to make laws in the Union List and the Concurrent list for those matters only which falls under the above four. Any law in relation to other matters other than these four has to be ratified by the state legislature of Jammu & Kashmir. This concludes that President can extend other articles to the State of Jammu & Kashmir despite the fact that it has freedom from some provisions of the constitution of India. Thus, under part XXI of the Indian Constitution which deals with temporary, transitional and special provisions Jammu & Kashmir has been granted special status under Article 370.

The Constitution of J & K

The Constitution of J&K is different from that of other states in the following aspects:

Fundamental Rights, DPSP & Fundamental Duties

  • Part IV Principles of State Policy (DPSP) and Part IVA i.e. Fundamental Duties are not applicable to the State of Jammu & Kashmir where on the other hand it is applicable to other states. DPSP actually means that the states are required to do some things for the welfare of the community.
  • Fundamental Right to Property is still guaranteed in J&K i.e. Articles 19(1)(f) and 31(2) of the Indian Constitution are applicable in this state.
  • The only Fundamental Right which has been added in the history of Indian Constitution which Right to Education is not extended to the State of J&K.
  • A special constituent assembly set up by the State has framed a separate constitution of this state and it is the only Indian State that has its own official flag.
  • It is the only state which does not have to provide a detailed record of money flowing in the state and where and how is it used.
  • Land or Property of this state cannot be purchased by the Indians of other states.

Without the consent of state legislature, Parliament cannot make any law relating to:

  • Modification of name or territories of the state.
  • The international agreement affecting the final settlement of any part of the territory of the state.

-In respect of J&K, the residuary power is with the state government and not with the Union of India.

-The permanent residents of the J&K state have been granted with some special provisions with respect to employment under state; settlement of the state; attaining of immovable property in state etc.

-Any amendment in the Constitution of India cannot extend to J&K unless it is extended under Article 370(1) by the order of the president.

Emergency Provision

  • President cannot declare an emergency under Article 352 of the constitution of India for the state of Jammu & Kashmir without the consultation of the State Governor.
  • Financial emergency (allowances reduction & salaries) under Article 360 cannot be declared by the Union of India in relation to J&K. Only in a situation of War and External Aggression, the Union can declare an emergency.
  • Governor’s rule has to be imposed for breaking down the constitution of the state of Jammu & Kashmir. Thus on the ground of failure to comply with the directions, the Union has no power to suspend the constitution of the State.

High Court of J&K

Limited power rests with the High Court of J&K as compared to other High Courts within India. It doesn’t have the power to declare any law unconstitutional and also it can issue writs only for the enforcement of fundamental rights, unlike other High Courts which can issue writs under Article 226 in relation to other matters also.

Official Languages

The official language of the state is Urdu but for official purposes, the use of English is permitted unless the state legislature provides otherwise. Provisions of Part XVII is applicable only partly to J&K. It is applicable only when it relates to:

  1. The Official language of the Union.
  2. The official language for communication between one state and another; or between a state and the Union.

iii. The Language of the proceedings in Supreme Court.

Relations with Pakistan Occupied Kashmir

  • Pakistan administered Kashmir is defined as “Pakistan occupied Territory” under Article 48 of part VI of the J&K constitution.
  • Also, there is a provision of 24 seats in the J&K state assembly for the Pakistan administered Kashmir under Article 48 of the J&K constitution.

Procedure for Amendment of State Constitution

The provisions of the Constitution of the State can be amended by the Legislative Assembly Act of the state passed by not less than two-thirds of the total members. President’s approval is needed to come into effect if an amendment seeks to affect the Governor or Election Commission. Extension of Amendment to the State of J&K can only be done by an order of the President under Article 370(1). Whether Article 370 can be amended when the constituent assembly of the State no longer exists is still a debatable question.

Incorporation of Article 35A in the Indian Constitution

Whether the president has the power to amend the constitution?

Article 35A has been incorporated in the Constitution by Presidential Order which states about the rights and privileges of the permanent resident of the Jammu and Kashmir which exclude any person from all State’s benefits who is not the permanent resident of the State.

Now the question arises that whether the President of India has the power to amend the Constitution? It is observed that under Article 123, the president of India has power to make ordinance in the case of urgency when either house of the parliament is not in session and that too for a shorter period i.e. for a period of six months. It is an exception in making a law, not a general rule or permanent measure. Then nowhere in Article 370, the President of India has the power to amend the constitution or insert a new article. It gives power to the president only to make exceptions or modifications with the concurrence of the Government of state. And under 368 the Parliament has the power to amend the constitution and the president does not have the power to amend. In Re Delhi Laws Act[2] it was held that the word ‘modify’ means the only alteration without radical transformation. But in Puranlal Lakhanpal v. President of India & Ors.[3] it was held by the court that the president had the power to make the modification and that the word modification can be interpreted to include ‘radical transformation’ and also it is considered that the widest meaning should be given to the word ‘modification’ and in that sense, it should include the amendment.

Therefore, we can conclude that the president has the power to make radical transformations as there is no reason to limit the meaning of the word ‘modification’ under Article 370(1) of the Indian constitution.

Demand for Abolition of Article 370

There are arguments provided by both, those who are in favour of and those who are against the abolition of this Article. Those who are in favour say that it has designed certain mental barriers. It is also claimed by them that it the root cause of all the problems in the state of J&K. Also, it is believed that it is Article 370 which encourages extremists activities in J&K and other parts of the country. It is also argued that it was a temporary arrangement and it was supposed to wear down gradually and that it is like a reminder to the Muslims of J&K that they still have to coalesce with the rest of the country. Also, the people who are against Article 370 provide reasons that it should be abolished s in order to promote National Integration and they cite this by a slogan i.e. “One Nation, One Citizenship”.

Whereas on the other hand, those who are against the abolition of this Article argue that it will have serious consequences. It is contended that it will encourage extremist to demand election which will lead to the internationalization of the issue of J&K. It is further argued that the contention that it will give rise to extremists activities is groundless as the states which don’t have any special status like the state of Assam and Punjab have also faced such problems. It will not only violate the grave undertaking given by India through accession but would also give unnecessary distrust in the minds of the people of J&K, making the issue more sensitive.

Conclusion

As per what constitutional experts say Article 370 should not be repealed or abolished. Rather it should be extended to the remaining states of India. Extension of such a provision to other states would provide greater freedom to them for making laws. And such an Autonomy will give greater scope for development. But for doing this centre should continue to support backward states which are ponderously dependent on Central Government Aid.

Also, Armed Forces Special Powers Act (AFSPA) has been enforced in Jammu & Kashmir since 1990, which gives provides special power to Indian security forces. Therefore a special status should be there if such a rule is implemented as it cannot be denied that it is a disturbed zone. Also, this rule is not helping the state as it doesn’t permit any person living outside the territory of J&K to buy any property here which eventually hampers the development scene of the state and that is why the state lags behind in Industrial growth. There are lesser job opportunities for people and as no outside companies can set up here, therefore it leaves a blank in the infrastructure scene.

[1] Indian Constitution,1949 art 370

[2] 1951 AIR 332

[3] 1951 AIR 332

The post Special Status of Jammu & Kashmir appeared first on iPleaders.

4 Must Needed Skills For Getting A Pre-Placement Offer (PPO)

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I was not placed straight out of college. I did not even have a pre-placement offer (PPO) in hand when I graduated law school.

You must be thinking, why and how am I writing about the most needed skills for getting a PPO? Because, I worked in the industry long enough and spoke to the ones who secured a PPO to know what I could have done differently. It sure would have saved me a lot of time. At least now you can save time and not repeat my mistakes.

When I was in law college, I had almost no guidance as to how to do things right, professionally. I did internships to figure out which area of law I liked better. I did not write or publish any articles. I did participate in moot court competitions and some pro-bono work. But I was doing the work all wrong. I was all over the place. If I were to look at my college resume, I would not hire me either!

So what did I do wrong?

My resume reflected my state of mind – confusion. I had done internships in civil law, criminal law, a litigation firm, a company, and an NGO. I had done one paper presentation on Lokpal Bill, had slightly above average CGPA. There were some extracurricular activities too. But my resume was as incoherent as I was about my career prospects! I landed my first stable job at about 1.5 years after graduation. I had worked with a law firm before that, but my stint with media and entertainment industry is where I found my footing.

I realised what I did wrong once I was doing the job. But then I went back recently to a few of my batch mates and asked them how they got a PPO and how different their career trajectory was from mine. The difference was significant as I had lost significant time trying to figure things on my own.

You don’t need to do that. I will share what I learnt from the different people about the must required skills for getting a PPO.

Writing Research Articles

The most critical skill set for a lawyer is writing. A lawyer needs to write briefs, applications, contracts, opinions and more. But the journey of writing begins in law school, with writing research articles.

Pick up an area of law which interests you as a career. It can be from criminal laws, real estate laws, tax law, media laws, intellectual property laws, cyber laws, etc. Then find a relevant or current topic and start writing a well researched, original, nuanced piece on it. It does not have to be 100 pages long or a dissertation. It just has to be crisp, nuanced enough to demonstrate your interest and knowledge in the domain.

I spoke to batch-mate who had bagged a PPO from a tier-one firm. He said that it was because of his interest in taxation laws and well-researched articles that he got the right internships and eventually a PPO. He clarified further saying that publications should not be random, but nuanced pieces that contribute to the academic discussion on the topic. Having them published in internationally renowned and peer-reviewed journals was the key to bagging his pick of the internship in his chosen field of law. The law firm that hired him found his ideas in the publications intriguing. So writing nuanced pieces in your area of law will set you apart from the crowd in the very beginning.

Contract Drafting

Any young lawyer or law student should learn how to draft a contract. It helps in making a little extra income and improves the knowledge. To know more about it, read this article.

Another peer shared her story about how she got through one of the top banking companies by demonstrating a strong knowledge base in contract drafting.

Most companies and law firms have a lot of contract drafting in their day-to-day work. Be it an M&A profile, or an in-house lawyer, contract drafting is quintessential to the job. You can learn more through contract drafting course to secure the internships or get a better job.

My peer shared her experience by stating that since she had internship experiences where she learnt about contract drafting, her knowledge about contract laws not only showed on her resume but throughout her interview rounds. She believes that is what set her apart from the other candidates. She had excellent grades, internships, publications, etc. just like her peer, but the knowledge of contract laws and SEBI regulations helped nudge things her way.

Know the Industry

It always helps to dip your toe into the water before diving into it. Similarly, knowing about the industry you’re interested in is essential. You can read about their history online, keep up with them in the news, follow legal blogs like Bar&Bench, Live Law, etc. to stay updated about the industry you’re interested in.

I had always looked up the companies I was applying to for internships or jobs to find out more about them. The organisations appreciate someone who did their homework and know their workings over a person who does not. Imagine you’re holding an interview. Which candidate would you pick if the qualifications were at par – the one who knows your company or the one who does not?

You need to know the current news, the company’s current latest performance, if they were in any recent lawsuit, their history and things like that. It not only demonstrates your interest in the company or organisation but also shows that you are willing to go an extra mile.

Interpersonal Skills

Soft skills are as crucial as your publication or assigned work.

I recently spoke to a colleague about his insights for a particular article. I presumed since he is a busy man, he will be pressed for time, so I introduced the topic abruptly to him. He asked me to repeat the question in a soft manner. I failed to understand the reason. Then he patiently explained to me that while asking for insights I should ask him questions in a particular manner, and not be all business-like about it. This way the other person will be able to share more candidly. That’s when it hit me. I need to improve my interpersonal skills!

In most technical rounds of job interviews, there are hypothetical situations and you are required to solve them. If you have interned with an organisation and showed an interest in them beyond the assigned work, it will not go unnoticed.

During internships, you are working with possibly your prospective team members. You must leave a good impression on them both with your work and interpersonal skills. Are you a troubleshooter? Do you go beyond the scope of your assigned work to get things done? The people you interact with, work on a daily basis for a month or two must have something to remember you by. Interns come and go through the organisations, very few are retained. So what are they doing right?

Networking should be done right. It is not the over-eager intern hanging out with the associates. It is the smart, hard-working intern who not only does the assigned work but goes an extra mile when needed. Internships are the best time to analyse if an intern can be a good fit for the organisation. So remember that you are leaving an impression on them irrespective of the fact whether you are trying to or not.

Knowing what not to do is half the battle won. Doing what you must do is the rest of the task. Remember that you’re making way to a career during your internships or through your skill development. You should try to showcase your skills as much as you can, through publications, your knowledge and interpersonal skills.

Good luck!

The post 4 Must Needed Skills For Getting A Pre-Placement Offer (PPO) appeared first on iPleaders.

How to tackle Cyber Bullying

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In this article, Qamar Jafari Ali of RMLNLU discusses how to tackle cyberbullying activities.

Introduction

Expansion of the World Wide Web enabled us to create our own identities on the internet, which in a way turned traditional bullying into cyberbullying. The latter is more devastating, has a greater audience and transcends physical boundaries. A recent survey by Microsoft noted that cyber-bullying was on the rise among Indian children and teenagers in the age bracket of 8 to 17. While the term cyberbullying may not be a part of an Indian youth’s vocabulary yet, a significant 53% of Indian children said that they had faced negative experiences online. Unfortunately, in the Indian paradigm, Cyber Bullying is only a serious concern when it leads to extreme consequences.

Source – http://trak.in/tags/business/2012/06/27/india-3rd-highest-cyber-online-bullying-survey/

This article aims at improving the reader’s understanding of cyberbullying and why we need to acknowledge it as a serious crime.

Understanding Social Media Vulnerability

Dr K Jaishankar who is the editor in chief of the International Journal of Cyber Criminology defines cyberbullying as:

abuse/ harassment by teasing or insulting the victims’ body shape, intellect, family background, dress sense, mother tongue, place of origin, attitude, race, caste, or class using modern telecommunication networks such as mobile phones and Internet.”

This definition can be narrowed down into three components.

  1. Teasing words or gesture.
  2. Motive/Intention to diminish or attack the identity of a person.
  3. Conveying the same to a wide audience via telecommunication or the internet.  

This gives us an idea that any threat to a person’s identity via telecommunication and internet comes under the ambit of cyberbullying. Now let us look at the definition of Social Media as defined by D.M Boyd and N.B. Ellison in their book, Social Network Sites: Definitions, History and Scholarship[1] and try to understand the clashes in both the definitions.

Social Media can best be defined as web-based services that allow individuals to

  1. Construct a public or semi-public profile within a bounded system.
  2. Articulate a list of other users with whom they share a connection.
  3. View and traverse their list of connections and those made by
    others within the system.[2]

The clash is between the social identity transcending from our real identities on these platforms. Any threat to it becomes a threat to our identity. Therefore, these social media platforms which act as a trolling hotspot these days, make us vulnerable in a very inquisitive way.

Statistics

Cyberbullying spreads across various platforms and various jurisdictions. India ranks third globally in terms of cyberbullying.[3] These pictures below show some alarming cyberbullying data on average metrics.

Source: https://cyberbullying.org/2016-cyberbullying-data

How to tackle cyberbullying

  • If it is an instance of ‘minor teasing and name calling’ avoid retaliating, if possible. Often it is the bully’s prime objective to get a reaction from you to which feeds to his online behaviour.
  • Block the bully.
  • Social Media privacy policies are your best allies. Use them efficiently. Report the incident to the administrators.
  • Document the evidence.
  • Your parents and friends are your back up. Call them up.

Also, various organisations are running with a prime purpose of spreading awareness and combating cyberbullying such as Megan Meir Foundation, Stomp out Bullying, Cyberbullying Research Center etc. These organisations work tirelessly to provide us with a better understanding of the issue and how to get out of it.

You can reach out to the following for Help – List of Cyber Crime Investigation Cells in India

Below is a table of relevant authorities with their addresses and contact numbers which one can reach out to while facing cyberbullying.

City/State Address Helpline Email/Website
1. Bangalore Cyber Crime Police Station, CID Annexe building, Carlton House, #1 Palace Road, Bangalore- 560001 +9108022942475

+9108022943050

cybercrimeps@ksp.gov.in

http://www.cyberpolicebangalore.nic.in/

2. Chennai SIDCO Electronix Complex, Block No. 3, First Floor, Guindy Industrial Estate, Chennai-32 04422502526 spcybercbcid.tnpol@nic.in

http://www.tnpolice.gov.in

3. Delhi Central Bureau of Investigation, Plot No. 5-B, 6th Floor, CGO Complex, Lodhi Road, New Delhi-110003 +91114362203

+91114392424

cbiccic@bol.net.in

http://cbi.gov.in/

4. Hyderabad

Cyberabad

-In Charge Cyber Crime Police Station, Hyderabad City.

– ACP Inspector Cyber Crimes, Sub Inspector Cyber Crimes, IT Cell Special Branch.

04027852040

9491039167

9491039172

9491039088

04027853413

cybercell_hyd@hyd.appolice.gov.in

http://www.hyderabadpolice.gov.in/

http://www.cyberabadpolice.gov.in/

6. Nagpur Cyber Crime Investigation Cell, Crime Branch, 4th Floor, Administrative Building No. 1, near Udyog Bhavan, Civil Lines, Nagpur-01 +917122566766 http://nagpurpolice.gov.in/
7. Pune Office of Commissioner of Police 2, Sadhu Vaswani Road, Camp, Pune – 411001 +912002026126296, 26122880, 26208250 crimecomp.pune@nic.in / punepolice@vsnk.com

www.punepolice.gov.in

8. Mumbai Cyber Crime Investigation Cell, Annex III, 1st floor, Office of the commissioner of Police, D.N. Road, Mumbai – 400001 +912224691223 cybercell.mumbai@mahapolice.gov.in

www.cybercellmumbai.gov.in

9. Bhopal Inspector general of Police State CYBER POLICE, Bhopal(M.P) 07552770248 www.mpcyberpolice.nic.in
10. Thane 3rd Floor, Office of Commissioner of Police, Khalkar lane, Court Naka, Thane(W) 02225410986 http://thanepolice.org/cybercell.php  
11. Uttar Pradesh Cyber Complaints Redressal Cell, Nodal Officer Cyber Crime Unit Agra, Agra Range 7, Kutchery Road 232001 05622463343 info@cybercellagra.com

digagra@up.nic.in

http://www.cybercellagra.com

12. West Bengal DIG CID III Floor, Bhawani Bhawan, Alipore, Kolkata – 7000027 03324506100 mail@cidwestbengal.gov.in

www.cidwestbengal.gov.in

13. Gujarat DIG, CID, Crime and Railways Fifth Floor, Police Bhawan, Sector 18, Gandhinagar 382018 +917923254384

+917923250798

+917923253917

Nil
14. Jharkhand IG-CID, Organized Crime, Rajarani building, Doranda Ranchi, 834002 +916512400737/738 a.gupta@jharkhandpolice.gov.in

Legal Recourse

India is yet to have a focused law on the subject of cyberbullying. Indian Penal code was amended in 2013 to incorporate cyberstalking as a crime but that is gender specific and helpful to women only.

The following table illustrates different laws related to cyberspace crimes.

Serial No. Offence Section
1. Criminal intimidation by anonymous communication 507 IPC
2. Violation of privacy 66E IT Act
3. Publishing or transmitting obscene material in electronic form 67  IT Act
4. Publishing or transmitting of material containing sexually explicit act, etc. in electronic form 67A IT Act
5. Word, gesture or act intentionally done to insult the modesty of a woman. 509 IPC
6. Defamatory messages 499 IPC
7. Stalking 354D IPC
8. Making sexually coloured remarks, guilty of the offence of sexual harassment. 354A IPC
9. Printing etc. of grossly indecent or scurrilous matter or matter intended for  blackmail 292A IPC

Cyber crimes have no set jurisdiction. It can be reported to the Cyber Crime Unit of any city irrespective of the place where it was committed. One can also file an FIR.

Section 66A Imbroglio

Section 66A of the IT Act bid farewell to the legal system at an early age. Section 66A was a shimmering light in the dark world of cyberbullying. The repeal of 66A was a direct result of mishandling the law under the pressure of some politicians.

Below is a table of various instances where section 66A was screwed-up to such an extent that the Honourable Supreme Court of India thought that the only way to come out of this problem is to scrap it. [4]

Arrest Matter Politician
A class 11th student from Uttar Pradesh Posted something linking Azam Khan with a communal incident Azam Khan
Shaheen and Rinu arrested in Thane, Mumbai Posted that the Mumbai shutdown after Bal Thackery’s death was out of fear and not respect. The other one liked the post. Bal Thackery.
Aseem Trivedi Arrest Posted Cartoons that mocked parliament
Ravi Srinivasan was arrested in Puducherry, 2012 Called the son of P. Chidambaram, corrupt on Twitter. P. Chidambaram
Ambikesh Mahapatra and Subrata Sen Gupta Circulated cartoons criticizing Mamta Banerjee Mamta Banerjee.
Air India Cabin crew members arrested in Mumbai, May 2012. Posted jokes about Narendra Modi and Ors. Narendra Modi
Five students arrested in Bangalore in 2014 Forwarding Anti-Modi messages on Whatsapp Narendra Modi

Although the arrest was justified by many regarding the debate of free speech and hate speech, the essence of 66A to act as a guardian against the social media atrocities was missed that put it under scrutiny time and again.

Relevant Case Laws

Manish Kathuria Case – Stealing the online identity of a person is an offence under the IT Act and is a form of cyberbullying

  • This is considered to be the very first reported case of cyberstalking in India. Also the eye opener for the lawmakers and the reason of amendment of IT Act 2000.
  • Manish Kathuria stole the identity of a woman named Ritu Kohli and used to chat in her name online in obscene language. He also made her contact number public in the chatroom.
  • He was booked under Section 509 of IPC for outraging a woman’s modesty, as Section 66A was yet to be born.  

Karan Girotra v. State – Sharing obscene images is a cyberbullying offence.

  • This case points out how difficult it is to prove the cyber crimes in a court of law owing to the conservative attitude of the judiciary.
  • Shivani Saxena during her period of divorce with her first husband Ishan met Karan online who later proposed her to marry her. She refused as she was still married to Ishan. Karan insisted to marry her after she is divorced.
  • On the pretext of introducing her to his family, he takes her to a house. Makes her unconscious and sexually abuses her. He also clicked pictured which he later used as a leverage to gain more favours.
  • Though the court did not allow anticipatory bail to Karan on account of him sharing the obscene images, but it also inclined towards the fact that the complainant filed the FIR only when the accused refused to marry her and the sex was consensual.

The case of Yogesh Prabhu – Stalking is punishable under 354D of the Indian Penal Code.

  • This was the first ever conviction secured by the Mumbai Cyber cell. The court convicted Yogesh Prabhu for stalking and sending obscene images.
  • A three-year term was given with a fine of 10,000 and 5,000 under Section 66E and 509 of IT Act 2008 and IPC respectively.

Hurdles in Curbing Cyberbullying

Acknowledgement

This problem has been around for two decades now. Still, the awareness about it is minimal. Schools, law enforcement and even our parents are either unaware of any such phenomenon or choose to ignore, considering it trivial. Unfortunately, the victim is left alone in this setup an often hesitates to talk. In India, due to the societal indoctrination, it is the embarrassment among adults and the fear of getting your freedom compromised especially if you are a female, stops the victim of cyberbullying from addressing the issue head-on.

Who will take up the cudgel?

Our schools and parents teach us how to behave in the physical world. But we have very little education on how to behave online. In most cases, parents dust off their hands due to their limited understanding of the new age technology or sometimes even lack of time. Schools and law enforcement take action, if any, post the trauma experience. This happens due to the lack of an environment to talk about these issues due to which the bullying slips through the cracks or is either mismanaged. It is not the prerogative of any single institution to create that environment. Only a collective effort from the community at large will result in some meaningful difference.

The anonymity of the wrongdoer

The safest way of committing a crime on the internet is by wearing a cloak of anonymity. This, however, turns out to be a difficult situation for the law enforcement and the victim in tracing the perpetrator.

Lack of Jurisdiction

Cyberbullying by nature is a global crime. The principle of territorial jurisdiction does not apply because these crimes can also be committed through a server located anywhere on the globe.

Conclusion

Cyberbullying is a battle that is being fought half-heartedly. India needs a specific legislation focused on the social media and telecommunication atrocities. More than that, discussion and dialogues regarding cyberbullying so that it results in people being educated about the issue and the plight of the victims are heard by our lawmakers.   

[1] Boyd, D.M & Ellison, N.B. (2007), Social Network Sites: Definition, History and Scholarships, 13 J. Computer-Mediated Communication, 210-230 (2007)

[2] Id

[3] India Ranks Third on Global Cyber Bullying List <http://www.endcyberbullying.org/india-ranks-third-on-global-cyber-bullying-list/ >

[4]Shreya Singhal v. Union Of India.

[5]2012 SCC OnLine Del 2673

The post How to tackle Cyber Bullying appeared first on iPleaders.

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