A couple of years ago, I had to oversee my family business after my father’s sudden demise. It is a small publishing house for school textbooks and has been in our family for about four generations. It had been only two years since I was working as a lawyer and I was struggling to get a grip on my legal career. Then this happened, and I was to run a business!

It was a monumental task for someone who had barely any knowledge of the legal industry, to also run the family business.

Thankfully being a lawyer, I had learnt to never say no to any work that comes my way and to learn it on the job. However, what I did not anticipate was the different aspects of running an entire business. Whoever said lawyers are cut-throat should meet businessmen. They are the real sharks. And soon enough the shark came circling as they realised that a newbie had taken the reins.

I struggled for a good year before I got somewhat of a grip on things. There were shop establishment licenses to be renewed, accounting books to be maintained, sales, marketing, purchasing materials, typing and finalising of the manuscript, designing, employment contracts and management, salaries and bonuses, creditors to pay and so on.

It was a herculean task!

I made a lot of mistakes from missing the deadlines for filing the returns, to being called upon by the Income Tax Department for review of our books of accounts! It turns out that our chartered accountant and tax advisor had passed away a few months before my father, and we never found a replacement. So there were additional tax issues along with the dissolution of the partnership firm since the other partner wanted an out.

All this was just me overseeing the business to assist my mother, who had stepped into my father’s shoes. I was also working full-time for a company. To say I was barely afloat is an understatement. I was thrown to the deep end and was drowning. That is until I learnt how to swim, eventually.

I realised through this arduous journey of about two years that it is difficult to manage a business. But as a lawyer, I was quite taken aback by the knowledge of law a business owner requires, in their day-to-day activity. If I were working for another business in the capacity of a lawyer, I would have required a variety of expertise, even to be able to advise the client.

It got me thinking about the areas of laws which a lawyer may focus on to have a successful legal career. The realisation came from an informed place of knowing what a business needs from their legal advisor. If our small business needed a full-time lawyer, imagine the requirements of the big clients and companies, who pay handsomely for legal advice and services!

So I have narrowed down to the basic five areas which are crucial to the functioning of any enterprise and calls for legal expertise:

• Contract Drafting, Negotiation

All businesses, big or small run on dealings between parties. It could be related to investment, purchase, sale, marketing, employment, etc. The consensus in transactions is difficult to achieve by the parties alone. This is where a lawyer comes into the picture.  It is a lawyer’s job to figure out what the clients want and draft the terms and conditions accordingly. A good lawyer knows what to ask for in a negotiation, and what to give up to get the best outcome for their client.

From drafting a variety of contracts for mergers or acquisition of businesses to the employment agreement, suppliers agreement, outsourcing contracts, etc., and their negotiation – a lawyer does it all. There is a need for lawyers to know how to draft such agreements in their day-to-day work profile or to increase their clientele.

So for any lawyer, the area of contract drafting and negotiation will open many doors. The art of drafting an airtight contract comes from years of practice. There are contract drafting courses which teaches the nuances of drafting a solid contract.

• Employee Management Labour Laws

Richard Branson, the business magnate and investor, famously said, “Clients do not come first. Employees comes first. If you take care of employees, they will take care of the clients.”

All organisations are run by their workforce. A company is as good as the people who work for it. Therefore, there is a requirement for effective recruitment of employees and their management. The human resources personnel need to be conversant with the industrial and labour laws. But the lawyers need to be able to guide the company and management through the employment contracts, employee-related dispute resolution, sexual harassment lawsuits, labour lawsuits, etc. They also need to draft necessary policies, conduct workshops wherever necessary for employee management labour laws.

There is a huge demand for lawyers in the recruitment space. The recruitment companies like Vahura-Legal Talent Management, Randstad India, Manpower Group, IKYA Human Capital, etc. all need lawyers adept in employment laws to assist in the recruitment, guiding the human resource personnel. There are industrial and labour law courses available for building an expertise in this field of law.

• Information Technology and Law

In the era of internet companies, and e-commerce websites and applications, a lawyer needs to be in the know of the tech-legal aspects. From identifying the jurisdiction to areas like cybersecurity, data privacy, GDPR compliance, regulation of payment getaways, software licensing, cyber crimes, etc., the lawyers need to know the applicable laws.

The lawyers are needed for deals like in the case of Flipkart-Walmart acquisitions or to protect the intellectual property in cases like Google-Samsung. Then there are crimes like data theft, identity theft, cyber fraud, or security breaches as in the case of the Panama paper leak, which requires cybersecurity experts who understand the technological and legal implications.

There are online cyber law courses which are comprehensive in cyber law, fintech and technology contracts. They provide the theoretical and practical aspects of the laws involved.

• Intellectual Property Laws

Necessity is the mother of invention. But it does not protect it from intellectual property theft or infringement. From the appearance of a product to its name, its functions and utility everything requires legal protection, to avoid infringement of owner’s rights. This requires expertise in intellectual property laws.

There are different areas of the IP laws which cover various aspects of any product or rights thereof. Copyright covers the rights of the author or owner on his work like books, songs, performance, dramatic works, etc. Trademarks protect the distinguishing word, phrase, symbol, product shape, or logo of goods. Patent laws protect the inventions or innovations of a product. The design laws defend the aesthetics of any article or product of manufacture.

An IP lawyer needs to know which law is applicable and when. Whether a new application requires protection under copyright law, trademark law or patent law depends on its nature, function and proprietary value. If there is nothing proprietary in a product, then patent laws will not protect it. In such a case the copyright and trademark laws might be attracted.

For more detailed and comprehensive learning of the practical aspects of IP laws, you may read more here.

• Alternative Dispute Resolution

Dispute resolution is the bread and butter of lawyer. Any contract is drawn to state the terms and conditions clearly, rights and obligations of the parties to minimise the disputes. In case of a dispute, any decent contract will provide for a dispute resolution mechanism.

While litigation remains a popular dispute resolution mechanism, the time and monetary constraints involved are much too high. Therefore, for speedy and cost-effective dispute resolutions, people are leaning more towards alternative dispute resolution mechanisms like arbitration and mediation.

Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute. In choosing arbitration, the parties opt for a private dispute resolution procedure instead of going to court. In mediation, the disputing parties work with a neutral third party, the mediator, to resolve their disputes. The mediator facilitates the resolution of the parties’ disputes by supervising the exchange of information and the bargaining process.

There is an increasing number of people opting for arbitration over litigation as they are swifter and much less costly compared to litigation.  Therefore, more and more lawyers have quickly adapted to the situation and learnt the mechanisms of the arbitration. One may learn more about arbitration and dispute resolution more comprehensively here.

Lawyers need to continually evolve and learn in their profession to be at the top of their game. While law school teaches us theoretical aspects of the subjects like contract laws, negotiation, labour laws, IT laws/cyber laws, IP laws, alternative dispute resolution, etc., it fails to prepare us for the real world. The lawyers have to learn these skills through years of practice, and then they manage to gain expertise in one or two areas at best.

But the clients need an all-around legal expert who can advise on a variety of subject matters. They want multiple experts at the cost of one. So they have to get the lawyers who are an expert in multiple domains. There are online courses available on business laws which cover all these topics and offer practical applications through regular exercises.

As technology evolves, so does the requirements of businesses. Now, everyone wants a well-rounded legal expert who has the proficiency in more than one aspect of the law. There are jobs out there in companies looking for dual-qualified lawyers who can handle a varied range of issues and disputes. It will require hard work and focus to be able to keep up with the task at hand. To learn and evolve as a legal expert is the only way to survive these competitive times in the industry

So keep learning!

The post 5 Areas Of Laws To Focus On For A Successful Law Career appeared first on iPleaders.

In this article, Alankrita Singh of NUSRL, Ranchi discusses article 32 under the Indian Constitution.

Concept and Purpose

Article 32 of the Indian Constitution gives the right to individuals to move to the Supreme Court to seek justice when they feel that their right has been ‘unduly deprived’. The apex court is given the authority to issue directions or orders for the execution of any of the rights bestowed by the constitution as it is considered ‘the protector and guarantor of Fundamental Rights’.

Under Article 32, the parliament can also entrust any other court to exercise the power of the Supreme Court, provided that it is within its Jurisdiction. And unless there is some Constitutional amendment, the rights guaranteed by this Article cannot be suspended. Therefore, we can say that an assured right is guaranteed to individuals for enforcement of fundamental rights by this article as the law provides the right to an individual to directly approach the Supreme Court without following a lengthier process of moving to the lower courts first as the main purpose of Writ Jurisdiction under Article 32 is the enforcement of Fundamental Rights.

Dr Ambedkar stated that:

“If I was asked to name any particular article in this Constitution as the most important- an article without which this Constitution would be a nullity— I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realized its importance.”

Nature of Writ Jurisdiction

The nature of Writ Jurisdiction provided under this Article is discretionary. There are five important factors for guiding this discretion.

Types of Writs

There are five types of Writs as provided under Article 32 of the Constitution:

1. Habeas Corpus

• Meaning

It is one of the important writs for personal liberty which says “You have the Body”. The main purpose of this writ is to seek relief from the unlawful detention of an individual. It is for the protection of the individual from being harmed by the administrative system and it is for safeguarding the freedom of the individual against arbitrary state action which violates fundamental rights under articles 19, 21 & 22 of the Constitution. This writ provides immediate relief in case of unlawful detention.

• When Issued?

Writ of Habeas Corpus is issued if an individual is kept in jail or under a private care without any authority of law. A criminal who is convicted has the right to seek the assistance of the court by filing an application for “writ of Habeas Corpus” if he believes that he has been wrongfully imprisoned and the conditions in which he has been held falls below minimum legal standards for human treatment. The court issues an order against prison warden who is holding an individual in custody in order to deliver that prisoner to the court so that a judge can decide whether or not the prisoner is lawfully imprisoned and if not then whether he should be released from custody.

• Important judgments on Habeas Corpus

The first Habeas Corpus case of India was that in Kerala where it was filed by the victims’ father as the victim P. Rajan who was a college student was arrested by the Kerala police and being unable to bear the torture he died in police custody. So, his father Mr T.V. Eachara Warrier filed a writ of Habeas Corpus and it was proved that he died in police custody.

Then, in the case of ADM Jabalpur v. Shivakant Shukla [1] which is also known as the Habeas Corpus case, it was held that the writ of Habeas Corpus cannot be suspended even during the emergency (Article 359).

While deciding whether Habeas Corpus writs are civil or criminal in nature, it was held in Narayan v. Ishwarlal [2] that the court would rely on the way of the procedures in which the locale has been executed.

This writ has been extended to non-state authorities as well which is evident from two cases. One from the Queen Bench’s case of 1898 of Ex Parte Daisy Hopkins in which the proctor of Cambridge University detained and arrested Hopkins without his jurisdiction and Hopkins was released. And in the case of Somerset v. Stewart wherein an African Slave whose master had moved to London was freed by the action of the Writ.

2. Quo Warranto

• What does the writ of Quo Warranto mean?

Writ of Quo Warranto implies thereby “By what means”. This writ is invoked in cases of public offices and it is issued to restrain persons from acting in public office to which he is not entitled to. Although the term ‘office’ here is different from ‘seat’ in legislature but still a writ of Quo Warranto can lie with respect to the post of Chief Minister holding a office whereas a writ of quo warranto cannot be issued against a Chief Minister, if the petitioner fails to show that the minister is not properly appointed or that he is not qualified by law to hold the office. It cannot be issued against an Administrator who is appointed by the government to manage Municipal Corporation, after its dissolution. Appointment to public office can be challenged by any person irrespective of the fact whether his fundamental or any legal right has been infringed or not.

• The court issues the Writ of Quo Warranto in the following cases:

1. When the public office is in question and it is of a substantive nature. A petition against a private corporation cannot be filed.
2. The office is created by the State or the Constitution.
3. The claim should be asserted on the office by the public servant i.e. respondent.

• Important Case Laws

In the case of Ashok Pandey v. Mayawati [3], the writ of Quo Warranto was refused against Ms Mayawati (CM) and other ministers of her cabinet even though they were Rajya Sabha members.

Then in the case of G.D. Karkare v. T.L. Shevde [4], the High Court of Nagpur observed that “In proceedings for a writ of quo warranto, the applicant does not seek to enforce any right of his as such nor does he complain of any non-performance of duty towards him. What is in question is the right of the non-applicant to hold the office and an order that is passed is an order ousting him from that office.”

The Writ of quo warranto was denied by the court in the case of Jamalpur Arya Samaj v. Dr D. Ram [5]. The writ was denied on the ground that writ of quo warranto cannot lie against an office of a private nature. And also it is necessary that office must be of substantive character. Whereas in the case of R.V. Speyer [6] the word ‘substantive’ was interpreted to mean an ‘office independent to the title’. Also in H.S. Verma v. T.N. Singh [7], the writ was refused as the appointment of a non-member of the state legislature as C.M. was found valid in view of Article 164(4) which allows such appointment for six months.

3. Mandamus

• Writ of Mandamus

Writ of Mandamus means “We Command” in Latin. This writ is issued for the correct performance of mandatory and purely ministerial duties and is issued by a superior court to a lower court or government officer. However, this writ cannot be issued against the President and the Governor. Its main purpose is to ensure that the powers or duties are not misused by the administration or the executive and are fulfilled duly. Also, it safeguards the public from the misuse of authority by the administrative bodies. The mandamus is “neither a writ of course nor a writ of right but that it will be granted if the duty is in nature of public duty and it especially affects the right of an individual, provided there is no more appropriate remedy” [8]. The person applying for mandamus must be sure that he has the legal right to compel the opponent to do or refrain from doing something.

• Conditions for issue of Mandamus

1. There must rest a legal right of the applicant for the performance of the legal duty.
2. The nature of the duty must be public.
3. On the date of the petition, the right which is sought to be enforced must be subsisting.
4. The writ of Mandamus is not issued for anticipatory injury.

• Limitations

The courts are unwilling to issue writ of mandamus against high dignitaries like the President and the Governors. In the case of S.P. Gupta v. Union of India [9], judges were of the view that writ cannot be issued against the President of India for fixing the number of judges in High Courts and filling vacancies. But in Advocates on Records Association v. Gujarat [10], the Supreme Court ruled that the judges’ issue is a justiciable issue and appropriate measures can be taken for that purpose including the issuance of mandamus. But in C.G. Govindan v. State of Gujarat [11], it was refused by the court to issue the writ of mandamus against the governor to approve the fixation of salaries of the court staff by the Chief Justice of High Court under Article 229. Hence, it is submitted that the Governor or the President means the state or the Union and therefore issuance of mandamus cannot take place.

• Important Judgements

In Rashid Ahmad v. Municipal Board [12], it was held that in relation to Fundamental Rights the availability of alternative remedy cannot be an absolute bar for the issue of writ though the fact may be taken into consideration.

Then, in the case of Manjula Manjori v. Director of Public Instruction, the publisher of a book had applied for the writ of mandamus against the Director of Public Instruction for the inclusion of his book in the list of books which were approved as text-books in schools. But the writ was not allowed as the matter was completely within the discretion of D.I.P and he was not bound to approve the book.

4. Certiorari

• What does Writ of Certiorari mean?

Writ of Certiorari means to be certified. It is issued when there is a wrongful exercise of the jurisdiction and the decision of the case is based on it. The writ can be moved to higher courts like the High Court or the Supreme Court by the affected parties.

There are several grounds for the issue of Writ of Certiorari. Certiorari is not issued against purely administrative or ministerial orders and that it can only be issued against judicial or quasi-judicial orders.

• When is a writ of Certiorari issued?

It is issued to quasi-judicial or subordinate courts if they act in the following ways:

1. Either without any jurisdiction or in excess.
2. In violation of the principles of Natural Justice.
3. In opposition to the procedure established by law.
4. If there is an error in judgement on the face of it.

Writ of certiorari is issued after the passing of the order.

• Important Judgements on writ of Certiorari

In Surya Dev Rai v. Ram Chander Rai & Ors., the Supreme Court has explained the meaning, ambit and scope of the writ of Certiorari. Also, in this it was explained that Certiorari is always available against inferior courts and not against equal or higher court, i.e., it cannot be issued by a High Court against any High Court or benches much less to the Supreme Court and any of its benches. Then in the case of T.C. Basappa v. T. Nagappa & Anr. [13], it was held by the constitution bench that certiorari maybe and is generally granted when a court has acted (i) without jurisdiction or (ii) in excess of its jurisdiction. In Hari Bishnu Kamath v. Ahmad Ishaque [14], the Supreme Court said that “the court issuing certiorari to quash, however, could not substitute its own decision on the merits or give directions to be complied with by the court or tribunal. Its work was destructive, it simply wiped out the order passed without jurisdiction, and left the matter there.” In Naresh S. Mirajkar v. State of Maharashtra [15], it was said that High Court’s judicial orders are open to being corrected by certiorari and that writ is not available against the High Court.

5. Prohibition

• What does Writ of Prohibition mean?

It is a writ directing a lower court to stop doing something which the law prohibits it from doing. Its main purpose is to prevent an inferior court from exceeding its jurisdiction or from acting contrary to the rules of Natural Justice.

• When is the writ of Prohibition issued?

It is issued to a lower or a subordinate court by the superior courts in order to refrain it from doing something which it is not supposed to do as per law. It is usually issued when the lower courts act in excess of their jurisdiction. Also, it can be issued if the court acts outside its jurisdiction. And after the writ is issued, the lower court is bound to stop its proceedings and should be issued before the lower court passes an order. Prohibition is a writ of preventive nature. The principle of this is ‘Prevention is better than cure’.

• Important Case Laws

In case of East India Commercial Co. Ltd v. Collector of Customs [16], a writ of prohibition was passed directing an inferior Tribunal prohibiting it from continuing with the proceeding on the ground that the proceeding is without or in excess of jurisdiction or in contradiction with the laws of the land, statutes or otherwise. Then in the case of Bengal Immunity Co. Ltd [17], the Supreme Court pointed out that where an inferior tribunal is shown to have seized jurisdiction which does not belong to it then that consideration is irrelevant and the writ of Prohibition has to be issued as a right.

Amendments to Article 32

‘Anti-freedom’ clauses were included in Article 32 by the 42nd Amendment. Such an amendment was made during the time of emergency when it was passed to reduce ‘both directly and indirectly’ the jurisdiction of the Supreme Court and the High Courts to review the application of fundamental rights. Then 43rd amendment of the Indian Constitution was passed which repealed Article 32A immediately after the emergency was revoked. Following the amendment, the Supreme Court again gained the power to quash the state laws. Also, the High Courts got the power to question the constitutional validity of central laws.

Limitations to Article 32

There are certain circumstances during which the citizens do not get the privileges which they ought to under Article 32. Therefore, the situations when the fundamental rights may be denied to the citizens but the constitutional remedies will not be available i.e. Article 32 will not be applicable are:

• Under Article 33, the Parliament is empowered to make changes in the application of Fundamental Rights to armed forces and the police are empowered with the duty to ensure proper discharge of their duties.
• During the operation of Martial law in any area, any person may be indemnified by the Parliament, if such person is in service of the state or central government for the acts of maintenance or restoration of law and order under Article 34.
• Under Article 352 of the Constitution when an emergency is proclaimed, the guaranteed Fundamental Rights of the citizens remains suspended. Also, Fundamental Rights guaranteed under Article 19 is restricted by the Parliament under Article 358 during the pendency of an emergency.
• Article 359 confers the power to the President to suspend Article 32 of the Constitution. The order is to be submitted to the Parliament and the Parliament may disapprove President’s order.

Conclusion

The constitutional remedies provided to the citizens are the powerful orders with immediate effect. And the writs are mostly invoked against the state and are issued when PILs are filed. The Writ Jurisdictions which are conferred by the Constitution though have prerogative powers and are discretionary in nature and yet they are unbounded in its limits. The discretion, however, is exercised on legal principles. Therefore, the first essential on which the constitutional system is based in the absence of arbitrary power. Hence, the decision must be taken on the basis of sound principles and rules and should not be based on whims, fancies or humour. And if a decision is not backed by any principles or rules, then such a decision is considered arbitrary and is taken not in accordance with the rule of law.

[1] (1976)2 SCC 521

[2] AIR 1965 SC 1818

[3]AIR 2007 SC 2259

[4] AIR 1952 Nag. 333.

[5] AIR 1954 Pat 297

[6] (1916) 1 K.B. 595.

[7] 1971(1) SCC 616.

[8] R.V. Dusheath (1950)2 All ER 741 at p. 743 per Lord Goodard C.J.

[9] AIR 1982 SC 149

[10] (1993) 4 SCC 441

[11] (1998)7 SCC 625

[12] AIR 1952 Orissa 344

[13] 1954 AIR 240

[14] AIR 1955 SC 233

[15] AIR 1967 SC 1

[16] 1962 AIR 1893

[17] AIR 1955 SC 661

The post Article 32 under the Constitution of India – Right To Constitutional Remedies appeared first on iPleaders.

This article is written by Mohona Thakur from Team, iPleaders.

What is the first thing that comes into your mind when you read media laws written somewhere? Do you think media laws is synonymous to intellectual property right laws?

Don’t worry, you’re not alone.

In case you sit to consolidate the laws governing the media and entertainment industry in India (like I once did a couple of years ago), you would possibly come up with a 5 page document that only consists of legislations that govern the media in all its forms – print, radio, broadcast, telecom and digital. When you categorise the laws industry-wise, you wouldn’t have so much of an issue coming up with a comprehensive list.

In order to cater to various kinds of media industries that exist in the 21st century, it is important to not only know how their businesses function, but also learn and understand how this business is regulated and protected.

Here is a comprehensive list of laws (industry-wise) that you must wrap your head around if you’d like to pursue a career in media and entertainment laws:

• Broadcast Laws

In an interview two years ago with one of the top production houses in the country, I was asked about the laws I thought that governed the broadcast industry. What kind of legal work do you think the teams at Star India or Viacom 18 do?

The broadcast laws find their backbone in the Copyright Act. Whether you are talking about the rights of the artists, infringement of a copyrighted song, royalties payable to original authors or licensing or assignment of copyrighted work, the answers to these questions lie in the copyright laws.

But that’s not where it ends. Media laws is an offspring of what wholly constitutes as Intellectual Property Rights (IPR) laws. When we write about broadcast laws in India, there are tonnes of regulatory laws that exist in this space. Here is a list that maybe handy:

• Cinematograph Act 1952 and Certification Rules 1983
• Trademarks Act 1999
• TRAI Act 1997 and Rules
• Prasar Bharti Act 1990
• Cable TV Network Regulation Act 1995 and Rules 1994
• Uplinking and Downlinking Guidelines
• Advertising Laws under ASCI
• Sports Broadcasting Signals 2007
• MIB Advisory on CBFC Certificate before trailers
• MIB Advisory on Rash Driving

In addition, while dealing with disputes arising out of such cases, you may want to have a few concepts such as ‘John Doe’ orders, format rights, obscenity, hurting religious sentiments, and the likes on the tip of your fingers.

• Print Media Laws

Laws governing and regulating the print media begin with the Constitution of India. The freedom of speech and expression as envisaged in Article 19 1(a) of the Constitution of India is where media laws took birth. This is how the newspapers got the right to voice their opinions, report incidents at large to the democracy. However, as we all know, this very freedom is curbed by reasonable restrictions under the very same Constitution to meet the checks and balances.

Did you know that we have an anti-espionage law in India? A law that overrides our right to information? One that affects what can be or cannot be published in newspapers? Ever heard of the case of Iftikhar Gilani?

Heard of the Press Council? Aware of what place it holds in the print-media industry? Did you know there is a specific act in place to determine the amount to be paid to working journalists? Or that there was a law that stated what could or what could not be published in newspapers with respect to parliamentary proceedings?

In case you were unaware, then it’s time you open your minds and read up and educate yourselves! There are a few online courses on media laws that offer to teach you about this industry in detail. And if not, I’m leaving a list of laws in India that govern the print media:

• Constitution of India – Article 19(1)(a) – Freedom of the Press, Article 105 and 194 – Parliamentary Privileges.
• The Press and Registrations of Books Act, 1867
• The Press Council Act 1977
• The Official Secrets Act, 1923
• The Parliamentary Proceedings Act 1977
• The Price and Page Schedule Regulations Act 1956
• The Delivery of Books and Newspapers Act 1954
• The Working Journalists and other Newspaper Employees Act 1955
• Working Journalist Wage Bond Rules 1956
• Working Journalists and other Newspaper Employees Tribunal Rules 1979
• Working Journalists Act 1958
• Advertising Laws under ASCI and various other legislations

• Laws Governing the Internet

What governs data privacy in India? What are the implications of the application of GDPR to Indian companies? What are the liabilities of platforms and intermediaries in the light of Cambridge Analytica?

What exactly do you do when you learn that content from your blog has been replicated in another blog? Are there any laws in India that protect against theft of content? Will takedown notices work? How do you learn how to draft take down notices?

These are real questions that are asked day-to-day while running a technology business. Answers to these would probably come through experience, or if you’re interested in beginning early there are online courses on cyber laws that bring some of the best in the industry to teach you what the industry requires you to learn.

Here is a non-exhaustive list of laws that govern the internet space:

• Information Technology Act 2000
• Telecom Regulatory Authority of India (TRAI) Act
• Prevention of Children from Sexual Offences Act 2012
• General Data Protection Rights (GDPR) Compliance
• Intellectual Property – Licensing and Assignments
• Law of Contracts

To be honest, the internet industries and businesses run more on the prevalent practices as there are no solid laws to regulate them today. From privacy policies to terms of use and conditions are a matter of practice. The contracts that the companies enter to follow the basic principles of Contract Law. This space is still largely unregulated, the IT Act is being amended from time to time to keep up with the technological advancements and the cyber crimes that come along with it.

• Advertisement Laws

Ever seen the advertisements on TV selling Carlsberg glasses and Blenders Pride Music CDs? They are brands majorly known for alcohol, advertising for something that they aren’t known for. In business parlance, this is known as ‘brand extension’.

This is specifically done to avoid surrogate advertisements. Brands extend their names to other products that are not banned from advertising, such as music CDs, sodas, glasses. However, they cannot possibly not be manufacturing those products for which they are advertising, because that would not only amount to surrogate advertisements but also be misleading in nature.

There are number of laws that seem inconsequential that govern advertisements in India. Let me ask you a question I was asked on the first day of my internship at HT Media: Can you commercially use the Indian National Flag on the front page of the newspaper? Do write in your answers to me at mohona@ipleaders.in

During my time at law school, I had made a checklist to a number of the advertising laws that shall be of use to all of you:

• ASCI Code of Conduct
• Consumer Protection Act, 1986
• Trademarks Act 1999
• Prize Competitions Act 1955
• Prize Chits and Money Circulation Scheme Act 1978
• Drugs and Magic Remedies Act 1954
• Indecent Representation of Women Act 1986
• Young Persons Harmful Publication Act 1956
• State Emblem of India Act 2005
• Emblems and Names Act 1950

Various other laws such as the Lotteries Regulation Act and Competition Laws also come handy while fighting cases of misleading advertisements or unfair trade practice. Ever heard of the famous Surf Excel 10/10 case on misleading advertisements? If you haven’t you can read more about the case here.

• Laws on Defamation, Blasphemy, Sedition and Obscenity

Need I remind you of the cases filed against Vishal Dadlani for defaming the Jain monk two years ago? The case filed against All India Bakchod (AIB) for obscenity after the Knockout Roast aired on YouTube between Ranveer Singh and Arjun Kapoor? Or the very recent case of sedition filed against Kanhaiya Kumar of JNU for singing an allegedly hate-filled, anti-national poem?

These all form a part of media laws because of the simple fact that these laws are at the very essence of the freedom of speech and expression. While these laws maybe touched upon while teaching IPC in law school, they aren’t always taught to us at length focussing on the consequences that such criminal offences would have on businesses as a whole.

Imagine the loss and the mental agony that may have been caused to Vishal Dadlani due to one tweet, the rounds that AIB may have had to take to their lawyers for organising an hour long YouTube video, that ultimately did go viral.

• Contract Drafting, Negotiation and Litigation Skills

Whether it is a software licensing agreement, or a product endorsement agreement, your contract drafting skills have a huge role to play. You must be aware of the boilerplate clauses that are required in these contracts. A huge role of both, an inhouse media lawyer as well as a media law firm associates involve negotiating and drafting various commercial contracts.

All the industry specific laws that I have written about, knowledge of the same culminates in the form of arguments while drafting a petition on commercial disparagement or misleading advertisements or copyright infringement for that matter! You shall have an added advantage if you not only know the industry specific laws and practices but also know how to draft a takedown notice, an application for interim injunction against copyright infringement, and understand how the various courts function.

While these cases ranging from Shreya Singhal’s landmark judgment in the case that held Sec. 66A of the IT Act unconstitutional, to the very many ongoing cases of commercial disparagement, misleading advertisements, defamation, copyright infringement, etc. are day-to-day reality, there are very few lawyers in this country that specialise in this area of law.

The laws are many and scattered across various legislations. The business that revolve around these laws are not only the production houses, artist management companies, advertising houses, news broadcasters, media houses, but also FMCG companies, telecom companies and service providers and various e-commerce companies and startups.

You need to be prepared. And prepared well. Begin with basics, make a list of legislations that are covered under media and entertainment laws. Take up a course on media laws to understand the applicability of these laws in practicality, strengthen your drafting skills, understand how courts how, read articles online on relevant topics and last but not the least, know the needs of the industry in and out.

Keep learning, keep growing!

The post Laws You Need to Master to Become an Outstanding Media Lawyer appeared first on iPleaders.

In this article, Porus Confectioner, pursuing Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata discusses the rules regarding issuance of stock option plans.

Introduction

Human Resources is a key talent that drives success in an increasingly knowledge-based corporate environment. The need to obtain, retain and reward talented people has become an important driver to get the best from Employees. ESOS (Employee Stock Option Schemes) is one such tool to make employees a part of the team that brings growth and profitability, by creating a sense of ownership, working towards a common aligned vision and purpose and rewarding persons who have thereby grown the company.

This note proposes to explain the key aspects of Stock Option plans and the legal position and procedures.

As per SEBI (Share Based Employee Benefits Regulations) 2014  the following kinds of share benefits briefly explained below are covered :

• Employee Stock Option Plans (ESOPs): contracts that give employees the right, but not the obligation, to purchase shares at a fixed price.  This is the most commonly used structure.
• Employee Stock Purchase Plans (ESPPs): these plans offer an employee the option to buy the shares at a discounted price.
• Stock Appreciation Plans (SARS): plans that offer an employee to receive cash or share to the extent of the excess of market price over the exercise price.
• General Employee Benefits
• Retirement Benefit Schemes

Our focus here would be to discuss the most popular option, Employee Stock Option Plans (ESOPS).

Employee Stock Option Plans ( ESOPS)

Definitions

ESOPS are contracts or schemes that give employees the right, but not obligation to purchase or subscribe to a specified number of shares of a company at a Fixed price (called Exercise price)  after a specified lock-in period. The exercise price remains constant, whilst the share price may move up or down.

The following laws cover the issuance and administration of ESOPS:

• Companies Act, 2013 and allied rules
• SEBI (Share Based Employee Benefits) Regulations 2014 and amendments
• Foreign Exchange Management Act, 1999
• Income Tax Act 1961
• Department of Public Enterprises Guidelines, where applicable
• ICDR Regulations 2009

Section 2 (37), Companies Act 2013,  defines Employee Stock Option thus :

“Employee Stock Option“ is the option given to directors, officers or employees of a company or it’s holding or subsidiary company or companies, if any, which gives directors, officers or employees, the benefit or right to purchase, or to subscribe for, the shares of the company at a future date at a predetermined price.“

As to who is an Employee is also spelt out in the 2(1)(f) of Share Based Employee Benefits Regulations, 2014 as well as Companies Act, 2017.  Both definitions are similar.

ESOP Procedure

The SEBI (Share Based Employee Regulation) 2014 and its amendments up to March 2017 is comprehensive and details all the requirements for setting up and administration of ESOP Plans, whether through the Direct or Trust route.

Ordinarily, though it can be, ESOPS are not given to all employees.  The first step would be to set up the ESOP and understand and identify the seniority level of employees would be offered ESOPS.

Eligibility for ESOPs

Guidelines under Companies (Share Capital and Debentures) Rules clarifies who is eligible for ESOPs:

1. Permanent employee of a company who has been working in or outside India
2. Directors of a company, whether whole time director or not, but excluding an independent director
3. An employee as defined in Clause a and b of above rules of a subsidiary, in India or outside company but does not include
   1. An employee who is a promoter or person belonging to a promoter group
   2. A director who either himself or through a relative or through any body corporates, directly or indirectly, owns more than ten per cent of the outstanding shares of the company.

Once a company has identified eligible employees the next steps would remain as follows:

• Prepare the ESOP Scheme
• Have the ESOP Scheme approved by the Remuneration and Compensation Committee at a Board Meeting. This is described in further details below.
• Convene Shareholders Meeting with details as specified in Rule 12, Companies (Share Capital and Debenture Rules) 2014. The details to be included are –
  • total number of stock options granted
  • identification of the class of employees eligible
  • appraisal process for determining the eligibility of the employee
  • details of vesting and vesting and lock in period
  • maximum no. of options that can be granted per employee

Directors Report

Once the Scheme is ready and enforceable, the company, in the Directors Report is required to furnish all details in the Year with the following details:

• Options granted, vested and exercised and total shares exercised,
• exercise price,
• options lapsed,
• any variations in terms of options,
• money realised, options in force, etc.

Where the option is not taken by an employee, it shall be renounced to the institution, since they are not transferable.

Also required to be mentioned are options granted to:

1. Key Managerial persons
2. Any other employee who has received more than 5 % of total allocated options
3. Employees who have been granted more than or equal to  1 per cent of the Issued capital

Register

The company shall maintain a register, at the registered office,  of Employee Stock Options and shall update the options immediately with regard to the particulars of the option granted. The entries in the register are to be authenticated by the Company Secretary or a person authorised by the Board.

Remuneration and Compensation Committee

The members of this Committee are constituted by the Board and as per Section 178 of the Companies Act 2013 and may act as the Compensation Committee for the purpose of approvals and implementation of the SEBI ESOP guidelines. The role of the Compensation Committee is to ensure that detailed terms and conditions of the plan are in accordance with all laws, including Compliance with Prohibition of Insider Trading Rules and Prohibition of  Fraudulent and Unfair Practices relating to Securities markets regulations. The role extends to ensuring adherence to guidelines by the delegation of powers to officers of the company as required.

Shareholders Approvals

The requirements of Shareholders approvals for the ESOP are enumerated in the SEBI rules and require shareholders approval by passing a Special Resolution.  The scheme approvals need to cover:

1. Description of schemes
2. Total number of options, shares, etc, to be granted
3. Identification of classes of employees eligible to be beneficiaries and appraisal process for identifying the employees in terms of performance parameters  
4. Requirements and period of vesting including the maximum period in which vesting must happen.
5. Exercise prices and formulae, periods, methods of valuation and maximum quantum of benefits per employee
6. Whether the scheme is to be administered directly or through trusts.
7. Guidelines to ensure Fair Value of shares/options and disclosure in Directors Report

In the following circumstances separate shareholder approvals are required :

1. Where the acquisition of stocks from the Secondary market is needed for implementation of the scheme. The Limits fixed for acquisition should be within the SEBI rules.
2. Similarly, where the secondary market acquisition is through a trust, to maintain the maximum 5 % cap as required by SEBI rules.
3. Where there is Grant of options to employees of subsidiary or holding company
4. Where Grant of options/Shares exceeds 1 % of the Issued Share Capital of the company during a particular financial year.

FEMA provisions for ESOPs

Many persons entitled to ESOPs work in foreign countries. The provisions of FEMA (transfer of issue of securities to a person resident outside India) Regulations, 2000, FDI regulations and Policy cover the relevant provisions in such cases.

The regulations permit Indian companies issuing shares to employees abroad or employees directors of holding/subsidiary companies abroad provided:

• The ESOP scheme is as per companies Act, SEBI rules, and Companies (Share and Debentures) Rules of the Central Government
• That all sectoral caps have been observed and adhered to
• Where Foreign Investment in a company is as per specific FIPB guidelines, the option/share has to be in accordance with FIPB approvals
• Prior approvals for any such options/shares for Bangladesh or Pakistan
• RBI may also require specific reports for options/shares to Non Residents at such frequency as set out by RBI in the specific form within set time limits of the issue of shares.

Income Tax Act 1961

Generally, ESOPS for employees are tax deductible in the books of the company being considered a legitimate expense for retention and promotion of employee performance. The discount or difference is wholly and exclusively chargeable as legitimate expenses, though care should be taken to ensure that differences or discounts ware reasonable and properly accounted, to stand scrutiny from income tax authorities. The SEBI (Share Based Benefit Regulation) 2014, gives the accounting requirements also to be set out for recognition of the Fair value of the shares. Here, the SEBI Guidance note for Accounting for SEBI share based employee benefits rules need to be followed.

With most Corporates having moved to IND-As accounting standards, these would mostly now be followed for accounting and tax purposes in India.  

Trusts

Before 1999 a number of ESOP offers Plans were set up as trusts since organisation felt the need to create a separate structure to monitor and control ESOP administration.

However, on noticing sharp practices which gave rise to fluctuation in share prices, using ESOPs shares and options for purposes other than strict rewarding of employees, including share manipulation, SEBI guidelines had prohibited trusts of listed companies from the purchase of secondary market shares in settlement of their employee options. This caused an inconvenience to listed companies who then were at unable to settle their employee plans

However, by subsequent amendments to the SEBI (Share Based Employee Regulations), listed companies were again permitted to purchase shares from registered stock exchanges in settlement of employee stock options.  However, the Trust based plans are far more onerous in terms of Compliance. There are rules, reporting standards, information to stock exchanges, monitoring and controls, limits on the number of shares that can be purchased from the secondary market in a particular year, disclosures with regard to voting rights if the shares are not exercised directly, disclosures by the trust, etc to ensure strict compliance with the purpose for which the shares were given as well rules to ringfence existing shareholder rights.

All such requirements are detailed in the SEBI rules for listed companies to follow.  To please take note of the fact that the trust structure is very onerous and is to some extent, difficult to administer, given the stringent rules.

Conclusion

The above set out the procedure and requirements for the offer of ESOPs to employees more on a direct route. The onerous requirements in case of a trust for the purpose have also been explained.

Companies, especially in the new growth knowledge sectors of Information Technology, Business Process Outsourcing, Pharmaceuticals and web-based service offerings have taken the benefit of the offer of ESOPs to retain and upgrade talent.  A number of listed companies also offer ESOPs for senior managerial staff. The ESOP rules are now set in place and rules are set in place for listed corporates to follow in practice.

However, the real benefits of ESOPs accrue to the relatively smaller unlisted companies who need to draw and retain experienced and knowledgeable talent. The options for unlisted companies are limited to share buy back or buy off from Venture Capital or PE Funds or await listing for employees to benefit. SEBI guidelines exist for unlisted companies too and even here the practice is more or less set in place.

The post Rules regarding Issuance of Stock Option Plans appeared first on iPleaders.

In this article, Qamar Ali Jafri discusses Career Opportunities for law graduates in Intellectual Property Law.

Introduction

Intellectual Property Law (IP) is an exponentially growing field. We are witnessing a paradigm shift from corporations and companies hunting down tangible properties such as land and machinery towards acquiring intellectual assets. India is becoming a hub of startups and R&D centres, which are nothing but intellectual creations. Intellectual Property law is all about protecting and exercising benefits from your intellectual creations. People protect what they create. It is a basic human tendency for which they need another set of people. Now that might be you, aspiring to build a career in IPR because clearly, Google directed you here when you asked it for some career advice.

Why is Intellectual Property law interesting?

Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce. Intellectual property law enables individuals to claim exclusive rights and financial gain from what they invent or create, which is a benefit to both creators and the public. With its foundation in human ingenuity, it should be no surprise that for the intellectual property professional, work days cannot be characterized as dull or boring. To state that another way, intellectual property law is unendingly interesting, especially when genius mixes with mortal unpredictability.

Let us look at some interesting cases

S. Victor Whitmill v. Warner Bros. Entertainment Inc

In the movie, The Hangover Part II, Stu Price played by Ed Helms wakes up with a tribal tattoo which is identical to the one Mike Tyson has. Tyson’s tattoo artist Mr Whitmill filed a lawsuit against Warner Bros. Entertainment for copyright infringement just weeks before the release of the movie. Warner Bros. Entertainment, however, saw it as parody falling under ‘fair use’. The injunction order was not granted as the studio was ready to alter the tattoo digitally. Further, to avoid a long trial, Whitmill and Warner Bros. Entertainment settled with an agreement under undisclosed terms.  

Amazon’s 1 – Click Patent

On September 28 1999, Amazon was granted a patent for the ‘1-click technology’. It is a one-click buying technology where customers can do an online purchase in a single click. There have been various disputes regarding this technology which stores all the necessary details in the user’s account online and enables them to make quick purchases. Amazon also filed a patent infringement lawsuit against Barnes & Noble in 1999. Barnes & Noble also used a similar technology under the name of “Express Lane” which also enabled shoppers to make a purchase with one click. The lawsuit was settled in 2002, however, the terms were not disclosed.

Adidas America v. Payless ShoeSource

We identify the Adidas shoes by their three strips, but Adidas is not the only shoe making company that uses stripes. In 1994, Adidas and Payless Shoesource got into a scuffle over these stripes. Payless was selling confusingly similar athletic shoes with two and four parallel stripes. The two companies hashed out a settlement, but by 2001, Payless was again selling confusingly similar shoes. Fearing that the sneakers would dupe buyers and tarnish its name, Adidas America Inc. demanded a jury trial. The trial lasted seven years, during which 268 pairs of Payless shoes were reviewed. In the end, Adidas was awarded $305 million—$100 million for each stripe.

The stories of intellectual property law are infinitely dynamic, surprising, amazing and curious. And as technology, human creativity and law develop and intersect, new problems with new questions arise.

Diverse Work Profile

There is a high probability that you are reading this as a law student who is ready to step into the world of IPR as a lawyer, so let us have a look at the different possible roles that people in this field play:

• Drafting (here, understanding the invention, strategizing protection, articulating the inventions and understanding nuances of language is very important)
• Litigation
• Filing & Prosecution
• Teaching, training and spreading awareness
• Analytics and Strategy
• Technology assessment and marketing
• Research, policy, philosophy and advocacy

The list is not exhaustive. The idea is to make clear that a single individual takes more than one of these roles up in the Indian paradigm because role specialization is rare, unlike the western countries. These roles might narrow down if you end up in an IPR specializing firm, where only specific roles are provided, but if you step into litigation, you clearly have a dynamic and broad field of practice, which I think is more fun.

Intellectual Property Law

• Understanding the law and its implications should be your primary objective no matter what role in this field you consider yourself fit for. In addition, a good communication skill is necessary as IPR is widely interdisciplinary.
• There is marketing involved, dealing with different communities in understanding the inventions, etc.
• Different roles require different strengths. For instance, a little knowledge in science and technology is required when dealing with patents. Owing to the fact that IPR is multidisciplinary and a bit of studying technology is involved for patents which subsequently is an important part of the IPR, students go technology phobic.
• A bit of research on this angle of technology tells us that there are lawyers who thrive upon flourishing practices even without having a formal technical degree, which is a requirement under the Patents Act, which is further debatable as to how a technical degree in any field makes one competent for a Patent Agent. Moreover, this is not taken well by the lawyer community.

Fields under IP Law

Lord Walker in the case of Philips v Malcurie declared that the term ‘intellectual property’ has no particular potency.  A consensus is there as to its core content but not as to its limits. Broadly classified under:

• Trade Marks
• Patents
• Copyrights and Related Rights
• Industrial Designs
• Geographical Indications
• Layout Designs of Integrated Circuits
• Plant Varieties
• Information Technology and Cybercrimes
• Data Protection

These fields are governed by various stipulated Acts such as

1. Trade Marks Act, 1999
2. The Patents Act, 1970 (as amended in 2005)
3. The Copyright Act, 1957
4. The Designs Act, 2000
5. The Geographical Indications of Goods (Registration and Protection) Act, 1999
6. The Semiconductor Integrated Circuits Layout Design Act, 2000
7. The Protection of Plant Varieties and Farmers’ Right Act, 2001
8. The Information Technology Act, 2000

You can read more about the international treaties regarding IP laws here.

How to build a Career in Intellectual Property Law

Choose a specialisation in IP Laws

There are three prominent categories of law students. Those who have good grades, those who do good internships and those who have both. The third category is microscopic, the majority lies either in the first or second category or in a worst-case scenario, they wake up late in the third or fourth year of their law school journey. It is never too late to take a decision. Every law college has some alumni base. Start networking, reach out to them and learn from their experiences. This is not just specific to IPR, be it any field of law, indecisiveness will lead you nowhere. Your seniors will advise you to pick a path and start building yourself for it. For starters, study the subject in its entirety. Once you have explored all the different areas of IP law, pick one to specialize. This specialization becomes important from the perspective of your future employer and your client.

Enroll in IP laws specialised courses

Once you have taken a decision, study the subject with more zeal and enthusiasm. Clear your basic understanding of the law. If possible, do a moot regarding IPR and write some research papers on it. This not only would develop your interest in the subject but also give you an edge and enhance your CV. You can also do an online diploma course for a better understanding. Different law schools and organizations provide such online courses. Enroll yourself in one of them. A few good examples of such courses would be LawSikho, FICCI, WIPO distant learning program, etc.

LawSikho

This course offers a detailed overview of Intellectual Property Law. Offering key insights regarding the impact of IP on businesses or career opportunity related to Intellectual Property Management. It also encompasses Copyright, Trademark, Patent, GI, Trade Secrets and Designs as well as Technology transfers.

Benefits of pursuing this course:

1. Entrepreneurs can learn how to transform their game-changing products and services into quantifiable market value and trump competition by understanding Intellectual Property Law.
2. Working professionals and freelancing creative professionals can learn how to signal the current and potential value of their offerings to prospective clients, current stakeholders and competitors.
3. It is critical for practising lawyers to up their game by enrolling in the intellectual property law course to protecting their clients by preventing rivals from patenting related inventions or preventing the misuse of their trademarks.
4. There is a growing body of research that shows a positive correlation between an organization growth trajectory and access to capital and patenting.
5. Students can enhance their output and create a formidable CV during internships by understanding the IP systems and their role in the economy through patents and other types of IPs. Patents are being aggressively used in opportunistic patents.
6. The evolving digital technologies are able to copy and disseminate unique intellectual achievements which leave a large section of the population vulnerable to vested interests.

You can know more about this course from here.

FICCI

This IPR Online Course has been introduced with the objective to provide a platform for candidates to gain practical knowledge about Intellectual Property Rights and its importance for innovation and growth of businesses and the economy as a whole. They provide a research-based approach to learning through case studies, online lectures and also work in close consultation with industry leaders and IP experts.

You can read more about the course from here.

WIPO

World Intellectual Property organisation provides a variety of courses in IP laws to both professionals and for someone who is new to the field. You can read more about the course from here.

Plan your internships in IP specialised Law Firms/Advocates

Real world exposure is necessary. All practical legal skills are rooted in tacit knowledge- the type of knowledge that is difficult to write down or verbalize. Try to do as many internships in the field of IPR as possible. It is one thing to read about it in textbooks but it is a completely different thing to be involved in an IPR issue to put the law into practice. IPR is a keyword that the firms will look for in your CV when you apply for an internship. When interning under a practising IP attorney, you need to have a basic understanding of procedural laws such as CPC and other specialized acts.

Element and Geographical Preference

This phase is tackled in the last days of your law school or preferably post-law school. IP law is too wide and dynamic. Unless you plan to start your own practice in this field of law it is advisable you pick your element. Institutional wise specialization is rare in India, but clients always look for someone who specializes in the issue concerning them. By this time, you might have developed a significant interest in a specific area of IP law, through your internships.

• List down specific positions that interest you.
• Include job titles and, if a job title is not sufficiently descriptive of a position, elaborate on it.
• Make sure to note that job titles are not necessarily the same from one employing organization to the next, so include as many alternative job titles that might describe the same or similar duties and responsibilities.
• List down examples of specific employers where you are likely to land such a position.
• The key is to logically back your interest in such positions. Do it by providing a background of your previous works and internships that qualify you for such a position.
• Now before applying for a job in a firm through campus placements or off campus, pick your geographical preference as to where you would like to work.
• Unless you have to, do not be specific and unnecessarily limit your options. Opportunities may arise that are so enticing that you might have to reconsider your locational preference if they were presented to you.

Legal luminaries in the field of IP law

Honestly, there are no set parameters to decide this. However, I have listed down three people whose stories would inspire you to be an IP law professional.

• Justice Gautam Patel of the Bombay High Court
• Justice Prabha Sridevan, former judge of the Madras High Court and former Chairperson, IPAB
• Prof Shamnad Basheer, Founder, SpicyIP

First, let’s take Justice Gautam Patel. Reading his judgements would remind you of your jurisprudence classes in Law School, which would emphasise three elements of legal reasoning: law, logic and coherence. Justice Patel’s judgments are ‘strong’ and ‘measured’ on all these fronts. Click on this link to see how he inspires his interns to work efficiently in the field of IP law.

Justice (Retd.) Prabha Sridevan served as a judge of the Madras High Court from 2000 to 2010. Post-retirement, she was appointed as the Chairperson of the IPAB (Intellectual Property Appellate Tribunal) from 2011 to 2013. In her capacity as Chairperson of the IPAB, she delivered a number of important IP decisions including one relating to India’s very first (post TRIPS) compulsory licensing case. She also played a monumental role in improving the functioning of IPAB. Most notably, it was her judgment at the IPAB that validated the IPO ruling on India’s first compulsory license in Bayer Corporation vs Union of India and Ors. The matter went in appeal to the Apex Court; argued by the best lawyers in the country. The SC agreed with the robust reasoning of IPAB and the IPO.

As for Prof. Basheer, his contributions to the world of Indian IP are diverse and significant, given that he has been involved with Indian IP for more than 15 years now! Most notably, he founded the ‘SpicyIP blog’ in 2005 as a way of democratizing the discussion around intellectual property issues and to foster more transparency in Indian IP law.

Debunking some misconceptions around IPR

Here are some misconceptions which are unhealthy if you wish to aspire a career in IPR:

Getting an IP job is easy because IP law is ‘hot’

The reality is different. IP law is of an evolving nature. It is changing its shape and sizes with every technological invention, every application of copyright filed and every case of an unfair competition is hitting the news. Moreover, the procedural IP laws adhere to the territoriality principle. The firms are just adapting to it. However, it is not easy to get placed in an IP law firm. It is even more difficult when everyone assumes that it is easy and decide to take this route only.

Technology phobia

No doubt the market is slightly better for attorneys with a technical degree but so is the case with people who have previously worked with an advertising company or a music industry. The consensus regarding this controversial clause of the Patents Act to necessarily have a technical degree is that you just need to have a scientific passion to thrive based on knowledge and understanding of the client’s business and technological space they work in.

It is multidisciplinary. There is too much to study

No matter how much you study any subject. There will always be a new law, which a lawyer needs to study as an when they arrive. It is in your best interest to understand the general framework and how to negotiate within the general types of subject matter, such as statutes and case laws. In addition, there are various types of roles within IP law that may suggest the relevance and importance of non IP courses. For instance, IP litigation. Sometimes it is the non-IP courses such as fundamentals of CPC and contracts that come in handier than actual IP courses during an IP attorney’s practice.

I am halfway through law school. Is it too late to start studying IP laws

This is one of the biggest misconceptions that need to be tackled. Do not let the vastness of the IP law field scare you. Most law schools in India, have kept IPR in their curriculum to be taught in the 6th or the 8th semester, which is the third or fourth year. There is a reason why this is done. No one decides in his or her 1st year to become an IP law attorney. The right time to pick a line of path and start walking on it in any law school would be the 4th year. One should align everything he or she does in a law school ( such as moots, papers & internships) with the path that has been decided.

Top IP law blogs to follow

Below is a list of blogs to follow for an IP law enthusiast.

• IPWatchdog www.ipwatchdog.com
• IPKat www.ipkat.com.
• SpicyIP www.spicyip.com
• IP News Center www.bananaip.com/ip-news-center
• Managing IP www.managingip.com.

Different Careers in IP Law

The area of Intellectual Property Law opens a plethora of career options.  A career in Intellectual Property is a secure one. An intellectual property professional can opt to become a specialist in one of the many Intellectual Property areas. They are so many in number that discussing all of them in one article is next to impossible. However, some of the prominent career options are discussed below:

Litigation

Litigation is an evergreen field. One just needs to give time and work hard to make a name. Due to the dynamic nature of IP law there is an alignment of focus by the judiciary on this area of law also. The lifespan of an IP lawsuit in the commercial courts if functional is comparable to highly ranked jurisdictions of the world. Moreover, IP litigation has a wild landscape, concentrated in the High Courts of Delhi, Mumbai, Kolkata and Chennai. In terms of volume, trademark litigations is at the top followed by copyright and patent.

Patent Related Career Options

The table below illustrates some of the flourishing career options in the area of patent law. 

Law Firms

You can also step into the corporate world as an IP lawyer. The jobs are however tedious, glamour and the money is good. The table below discusses some of the top IP law firms in India.

Propel Your Career with Blogging

The wide array of intellectual property law opens the gates to write about them to educate people. These ventures are often paid and open to both professionals and students. If not a full time thing, IP law blogging is an extra something in their work profile, which on one hand enables them to garner reputation for themselves and on the other hand is of great help to the commoners to understand IP law. SpicyIP is one such example. It is the top 3rd Patent blog in the world.

Some Motivation

No amount of career advice is the end game. No one can assess you better than yourself and tell you what you need to work on. Just work hard. Work harder than anyone above you and below you. Nothing commands respect and satisfaction more than a good work ethic. This career gig isn’t easy but you’ll make it through.

The post Career Opportunities for Law Graduates in Intellectual Property Law appeared first on iPleaders.

This article is written by Mohona Thakur, Team iPleaders.

Bollywood is quite often than not ‘inspired’ by Hollywood as well as South Indian movies and songs alike.

Let me give you an example. Remember Gauri Shinde’s coming of age drama, Dear Zindagi, starring Alia Bhat and Shah Rukh Khan? It turns out that it is said be inspired by a Canadian comedy-drama TV series called ‘Being Erica’. Was there any case filed against the producers of this film? No.

Do all disputes in Bollywood arise due to plagiarism? To a certain extent, but not entirely.

Plagiarism or as the writers would prefer calling it, ‘inspiration’ is one of the most rampant legal troubles that Bollywood is in the habit of facing in the recent times. Besides this, not only do they face suits from Hollywood for deceptively similar film titles (like in the case of Hari Puttar) but also closer home from the infamous censor board (such as Udta Punjab) and the very citizens of India (read Padmavat).

Indian cinema has no scarcity of films that may have courted a major controversy or in some cases faced a complete ban and were never released in the country. A number of films such as Mira Nair’s Kamasutra: The Tale of Love never released in India; Anurag Kashyap’s Black Friday which was based on the 1993 Mumbai blasts had to wait for three years before it could release as the Bombay High Court directed it to be released only after the trial was over.

Can you imagine the gravity of loss of business for the producers? This is one of the many reasons Bollywood production houses are in need of outstanding media lawyers who not only understand the law but also the needs of the business.

Let us take a look at a few of the Bollywood films that got into legal trouble and how they went about it:

• Padmavat (2018)

It is the latest film to court controversy in India. Certain groups of the right wing felt that the movie misrepresents history and tarnishes the reputation of certain lawyers. There were death threats to both the director, Sanjay Leela Bhansali, and the lead actress, Deepika Padukone. States such as Rajasthan, Uttar Pradesh, Madhya Pradesh, Gujarat and Haryana had disallowed screening of the movie, even as it awaited the certificate from the certificate board.

The film was on the other hand not getting the required clearances from the Certificate Board. The apparent reason for the same was an incomplete application submitted by the filmmakers and the 68-day rule (one must submit the application to the film certification board at least 68 days before the release date).

Eventually, Viacom 18 through their firm, Naik Naik & Co., approached the Supreme Court against the notification of the above-mentioned states seeking stay of the same and permitting the release of the movie across India. The bench constituting the Chief Justice of India heard the matter and put a stay on notifications issued by the states. You can read more about the arguments advanced in this matter here.

• Udta Punjab (2016)

The controversy surrounding the release of the Shahid Kapoor, Alia Bhat starrer Udta Punjab has been one of the longest that Bollywood has possibly seen. With the initial jolt coming in from the Certificate Board (CBFC) suggesting cuts across 13 categories to the protests across northern India and subsequently the batch of petitions filed in the Punjab and Haryana High Court alleging that the movie shows Punjab in bad light and promotes usage of drugs, Udta Punjab fought a long drawn battle.

The courts in India finally drew a close to the long controversy surrounding the release of the movie having decided that it does not contain anything objectionable in the film.

The Bombay High Court also ruled in favour, after an amicus curiae appointed by the Court watched the movie in the presence of the CBFC officials and producers of the film. The producers of the film, Phantom, through their lawyers Naik Naik & Co. approached the Bombay High Court against the CBFC and its habit of acting more like a censor board than a certificate board. The division bench of the Bombay High Court allowed 1 cut and also slammed the Board for imposing cuts mindlessly.

• Knockout (2010)

Twentieth Century Fox filed a case of copyright infringement against the makers of the movie Knockout claiming that it was a complete rip-off of their movie named ‘Phone Booth’. If you watch both the movies, you’d realise that the movies revolve around the same plot – a hostage in a phone booth having a conversation with the sniper and intervened by intruders during the conversation.

While the single bench stayed the release of the movie, the division bench reversed the stay order. Eventually, the parties came to an out of court settlement and Sohail Maklai, the producer of Knockout paid Fox an amount of 1.25 Crore.

This isn’t a one off case where inspiration went a notch up too high and took a turn towards infringement. In 2009, Twentieth Century Fox had filed a suit against BR Films for the movie ‘Banda Yeh Bindass Hai’ claiming that it was the copy of their film ‘My Cousin Vinny’. The case was settled out of court and BR Films had to pay up 1.3 Crores for it.

There are a number of other movies such as Partner, which was allegedly a copy of the Hollywood movie Hitch, Bang Bang which was clearly the Indian version of Knight and Day.

How does one decide whether it is an inspiration or an original work under the Copyright Act? I believe deep understanding of copyright law through various sources including reading up the law, case laws and engaging in courses on intellectual property and media laws shall be helpful.

• Hari Puttar: A Comedy of Terrors (2008)

Warner Bros. which owns the rights to the Harry Potter franchise had filed a case against the movie Hari Puttar claiming that the title to the movie was too similar to the title of the well-known Harry Potter franchise. The case was filed by Warner Bros. in the Delhi High Court a month before the release of the movie in question.

Justice Khetrapal in his 26 page judgment very clearly enunciated that Warner Bros. sat over its rights for three years before they filed the case in 2008. The fact that the movie was going to be titled ‘Hari Puttar’ was in their knowledge since 2005 and they chose to only file a suit for injunction when the movie in question was about to reach the finishing line.

For those of you who do not know, it is a well-established principle that if the plaintiffs stood by knowingly and let the defendants build up their business or venture, then the plaintiffs would be estopped by their rights to claim equitable relief. This three year long unjustified waiting period is what caused Warner Bros. a favourable judgment!

• Phir Se (2015)

Kunal Kohli’s movie Phir Se was stuck in a long legal battle for having lifted the script and story off an underproduction movie titled R.S.V.P. The writer Jyoti Kapoor and production house India Stories Media and Entertainment Pvt. Ltd. dragged Kohli to the court.

The Supreme Court, not completely convinced by the arguments advanced by Adv. Amit Sibal and Sr. Adv. Shyam Diwan for the production house and writer, allowed the movie to be released on the scheduled date. This was subject to the condition that Kunal Kohli pay a total compensation of Rs. 60 Lakhs and give due credit to the writer.

This case was seen as a huge win for the writers in the film industry as this acted as a sign that the screenwriters are very vigilant about their rights and are not scared of standing up and fighting against producers and directors at the risk of losing future assignments.

If you take a quick look at the court cases and litigation involving media and production houses, whether they are certification board issues, petitions filed by NGOs, etc., copyright infringements with respect to movies or songs, trademark infringement of movie titles, or plagiarism, you will notice that there is a rampant increase in them.

In the quest for finding not only good content, but content that will sell and make the production houses profitable, a lot of lines are unknowingly or knowingly crossed. With the increase in such litigation, it is best for not only the lawyers to be well-versed in media related laws and litigation but it is also necessary for the film fraternity to have knowledge about media and entertainment laws.

If you work for a media house or ad agency, consider sending someone from your legal as well as creative team for this media law course. If you are a media lawyer interested in this sort of work, or someone planning to get into the media and entertainment law business as a lawyer, do check this course out.

The post Bollywood’s Top Five Court Battles appeared first on iPleaders.

Law school was my dream realised.

Getting through CLAT and then through SET, I was thrilled. I had worked hard for a year and pursued B.Com (Hons) while preparing for law entrance examinations. I did morning college, tuition, assignments, law preparation classes and then my law preparation in the middle of the night. I did this for a whole year, and it paid off!

Then law school started and I was introduced to a whole world!

I loved attending the lectures, and was propped up in the first bench. I researched well for assignments I was proud of. I made new friends and had fun. Then I taught underprivileged children, worked for worthwhile social causes, internships and so much more!  But soon enough the subjects changed and the competition became intense. We learned cyber law, media law, family law, criminal law, and about 65+ subjects in those five years !

What I did not realise was that I had slowly started losing interest in the subjects I so loved. Maybe it was the daily grind, or youthful distractions, but I did not find my curiosity rekindled.

In hindsight, I realise that I was bored of the theoretical sludge passed off as ‘knowledge of law’. It was not my institute or professors, rather the entire education system which was flawed.

Chartered Accountants have mandatory articleship as part of their curriculum. Even doctors have internship and training. But the other ‘noble’ profession, law, requires students to figure out practical training on their own. We don’t have practicals or labs to perform experiments or run codes like engineers. Sure we have moot courts, debates, etc. But, we have to rely on ourselves to figure out internships, practical training, do the hands on work. There are internship assistance in some colleges. But they only assist in putting you in touch with the prospective employer and resume, etc. They don’t teach you the real-life skills needed in the field of legal practice.

But where should law students go when they need to bridge the gaps in their practical learning? How do they gain the knowledge of what skills to acquire for a particular field? How do they know which area to focus on and how? How do they retain and nurture their interest in their chosen field? How do you learn real-life skills?

No one can emphasise enough how different is the real-life experience from the sheltered life of  law school. I did not get placed from college or during college due to lack of systematic guidance and self-awareness. I knew the laws, but I did not know how to apply them when I get a client.

So was it worth it: 5 years of education at the law school?

Yes. Without a doubt.

I would not have been able to see law as I do now, without being taught how to analyse the laws. Sure there were spme professors who had no practical experience themselves, therefore their knowledge was insufficient when it came to the practical aspects.

But researchers and academicians have a firm grip on the analytical part of the laws. So when it is taught by them, the methods trickle down to the students in a manner. Yet, the education system is flawed when it makes students learn and write the laws, without asking analytical questions or the application of their knowledge.

I remember that I started law school studying from prescribed book lists and reference lists. I used to make diligent notes in class and study in the libraries and prepare more. By the time I was in my fifth year, I was reading off just textbooks, guide books and past papers. The question papers were theoretical and did not test the analytical or practical application of legal knowledge.

But I was stumped time and again when I had to apply my theoretical knowledge to the real-life situations. I struggled like many others to get a job after graduation. My first job did not pay well, but I took it to learn what I missed in law school days. In hindsight, it was because of simply being unprepared, lacking necessary skills and in-depth knowledge of law, and inadequate training that added to my struggles.

Here’s why I struggled to get a decent job after graduation:

# Drafting – the first gap in my legal education!

So just like any fresher with basic writing skills, I thought I will be able to draft anything – applications, petition, plaint, contracts, opinions, etc. But I was gravely mistaken.

In my first job as a junior advocate, for three months I was pushing paper, carrying briefs, reading, making lists and summaries of documents. I was not even entrusted with drafting a cover letter until I went to the partner and asked for more work.

I was asked to draft a simple notice to another advocate. So I went and wrote with full vigour, all that I thought was relevant. Then I took a printout and went to the partner with my handiwork! He took one look at it and then me, took his red pen out and started making corrections. By the time he was done, the black ink was replaced with red one. I have always taken pride in my writing skills, so I was devastated.

I was never taught how to draft anything until my fourth year of law school. In my month long internships, I was not entrusted with any heavy work. So I was at a total loss. I did not know I was supposed to practice on my own through all those years. But there was no point lamenting my lack of useful skills. It was time to develop them. So I kept at it, and went to the partner every time possible for corrections, until the red pen was out of commission.

The fact is I did not learn much drafting at law school, and that came back and haunted me every time I had to draft a notice, application or a contract. It was only after years of constant learning and practice that I gained some confidence in my drafting skills.

These days there are contract drafting courses available online, which allow full-time law students and professionals to work on their drafting skills. But I had to learn it the hard way and over a long time due to the gap in my legal education.

# Superficial Knowledge Of Law: the second gap in my legal  education!

Jack of all trades, master of none!

I mentioned earlier that I’d studied 6-7 papers per semester over a span of ten semesters, which is around 65+ papers. I was taught a variety of laws in law school like everyone. But the difference between studying for an exam or assignment, and for a case is huge!

In my second job, I was asked to advise straight off the bat! They thought I am from a good college, have one year experience, so I must know  the laws. But I did not know much about companies law, compliance work, reviewing contract, SEBI regulations or anything pertinent to the task at hand! So I struggled for weeks to able to understand the applicable laws. Then I had to study them and apply them in the contract I was drafting or reviewing. Obviously, I faced loads of difficulties, burned the midnight oil to redo my work and learn more.

Let us face it, most of us did not know enough right after law school to do the assigned jobs. The internships were a great source of learning, if you had the right seniors and mentors. But that is also not in one’s control. There were bits of intellectual property law knowledge which came in handy when I was asked to register the new IP portfolio. It is here that I learned about renewing and filing for trademark and copyright applications.

As I was working for a company, I was expected to do a variety of work like drafting of merger related documentation, due diligence, etc. This required a working knowledge of contract laws, company laws, SEBI regulations, intellectual property laws, IT laws, etc. I only had superficial knowledge in these subjects as I’d studied them for one or two semesters only. You can do a business law course to get a comprehensive understanding of IP laws, IT laws, labour laws, dispute resolution, etc. to gain specialised knowledge. But it was tricky for me to try and recall five years’ worth of law papers on the job. I had to study everything all over again!

# Inadequate learning during Internships: the third gap in my legal  education!

Everyone I know who bagged a PPO had a steady line of good internships. Even I interned every vacation. But there was a problem – mandatory 75% attendance. I am sure there are people who managed to learn their ways during internship.

For me, it seemed the duration of internship was too short. Our vacations were barely a month long. But there were students who extended their internship instead of focusing on their attendance percent. At the time I thought they were making a mistake. But maybe they had it figured out!

During internships it takes a while to figure out things. It took me a week to figure out the courtrooms in the Supreme Court! Then you have assignments which are way beyond your depth. In my initial internships, I barely knew the laws, so I was assigned to make lists and read briefs. Training interns is difficult and then they have to be monitored closely. This means more work for the mentors. I realised this when I was assigned interns during my first year of job, that they don’t know enough and training them is time consuming. There has to be more time to train the interns than a few weeks or even a month.

It was in my fourth year that my law subjects finally caught up with my internships responsibilities. It was only then that I was assigned good research work and some drafting. Till then internships were mostly to be added to my resume more than anything else. The work that we expect to learn during law college is usually not the same as what we need to learn. The disparity between what we learn in college and what we must do in internships and jobs, is significant.

Therefore there should be mandatory internships and training of law students, than leaving up to them to figure it out on their vacation. Internships should be part of the curriculum for every law student, rather than an option.

We are only as strong as our weakest link. We need a systematic revamping to bridge the gap between the theoretical and practical aspects of learning law. Both are equally important in order to avoid the unnecessary struggles after graduation. There are online courses which provide necessary practical training along with the theory. These courses help law student learn through application based weekly exercises to build their knowledge base in the subjects which are taught in depth.

What we really need is a revamp in traditional legal education with time. In these competitive times, where we need to know before being asked to do a task, we simply need a well-rounded training system. Otherwise we will end up with bright and smart students going through unnecessary struggles, before achieving success in law.

The post Why Do So Many Law Graduates Struggle to Get A Decent Job appeared first on iPleaders.

This is a Guest Post by Eshan Bhardwaj which discusses on Triumphs and Failures of Corporate Social Responsibility in India.

Introduction

“What corporations do to society is far more important than what corporations can do for society”   -Peter Druker

Corporate Social Responsibility(CSR) is how companies manage their affairs to produce an overall positive impact on the society. It covers sustainability, social impact and ethics about core business – how companies make their money – not just add-on extras such as philanthropy.

The Concept of Corporate Social Responsibility for firms and businesses has undergone a radical change since its early days and has evolved from a mere slogan to the present day situation where it is considered no longer a fashion but as the part and parcel of a company’s functioning to be socially responsible.[1]

Companies need to answer two aspects of their operations.

1. The quality of their management – both in terms of people and processes (the inner circle).
2. The nature of and quantity of their impact on society in the various areas.[2]

The reason that the firms should put their heart and soul while carrying out CSR activities is that humanity finds itself in the second decade of the 21st century and taking into considerations of all the political, economic, social, and environmental problems that the humans are facing, corporations have a serious responsibility of playing their role in contributing to the well-being of mankind and society.

CSR has become an integral part of a company’s functioning and today it has become indispensable that a firm demonstrates such responsibility. Although, earlier it was not a legal compulsion that had to be walked through by any firm, but following it was considered as a good practice for taking into account social and environmental issues.

In recent times, Corporate Social Responsibility has been considered vital for the success of any firm. The 2015 Cone Communications/Ebiquity Global CSR study found that a staggering 91% of global consumers expect businesses to operate responsibly to address social and environmental issues. Furthermore, 84% say they seek out responsible products wherever possible. Above stats show that the consumer is getting more aware of the CSR with each passing day and they tend to buy products only from those businesses that follow ethical rules. Since, CSR depicts that a corporate follows ethics and thus cares about the society, rather than just minting profits. This helps in attracting customers who share the same values and interests[3].

Following a sustainable and ethical approach provides a corporate with scores of benefits[4] and among them, the most prominent one is increased customer engagement. Customers are considered as the part and parcel of a business, so when a business involve itself in the well-being of a society and environment, it creates a buzz among the customers and they get attracted towards the policies of that particular business. Further, a huge and a faithful consumer base helps the businesses in getting a competitive advantage over their peers and makes them stand out as the favourite[5]. A socially responsible behaviour from the businesses brings professionalism and dedication to the table for employees. Working for the benefit of society brings a feeling of pride and contentment in the minds of the employees. This results in employees being more effective and efficient towards their duties[6]. Also, when a corporate works for the betterment of the society, they tend to avoid situations that cause a detrimental effect on the goals of the company. A positive and altruistic approach towards the society helps the firms in building an indelible imprint on the mind of their customers and this approach provides the firm with an upper hand over their competitors[7].

Companies Act 2013

Seeing the importance of CSR, the new companies law, enacted on 29th Aug. 2013 has introduced various new provisions. Among those, one is CSR i.e. Corporate Social Responsibility. Sec. 135[8] of the Act provides obligation for every company having the net worth of rupees five hundred crores or more, or turnover of rupees one thousand crores or more, or net profit of rupees five crores or more during any financial year shall constitute a Corporate Social Responsibility committee. As per the provision, the companies covered under it shall spend at least two per cent of its average net profits made during the three immediately preceding financial years, in pursuance of its Corporate Social Responsibility Policy.

There are various activities that have been provided in the Act, that the companies can undertake in lieu of Corporate Social Responsibility.

Activities for CSR Expenditure

Schedule VII mandates expenditure for the following activity-

1. Eradicating hunger, poverty and malnutrition, promoting preventive health care and sanitation and making available safe drinking water,
2. Promoting education, including special education and employment enhancing vocational skills especially among children, women, elderly, and the differently abled and livelihood enhancement projects.
3. Promoting gender equality, empowering women, setting up homes and hostels for women and orphans; setting up old age homes, daycare centres and such other facilities for senior citizens and measures for reducing inequalities faced by socially and economically backward.
4. Ensuring environmental sustainability, ecological balance, protection of flora and fauna, animal welfare, agroforestry, conservation of natural resources and maintaining the quality of soil, air and water.
5. Protection of national heritage, art and culture including restoration of buildings and sites of historical importance and works of art; setting up public libraries; promotion and development of traditional art and handicrafts.
6. Measures for the benefit of armed forces veterans, war widows and their dependents.
7. Training to promote rural sports, nationally recognised sports, Para-Olympic sports and Olympic sports.
8. Contribution to the Prime Minister’s National Relief Fund or any other fund set up by the Central Government for socio-economic development and relief and welfare of the Scheduled Castes, the Scheduled Tribes, other backward classes, minorities and women.
9. Contributions or funds provided to technology incubators located within academic institutions which are approved by the Central Government.
10. Rural development projects.
11. Slum Area Development[9]

Composition of CSR Committee

Historical Developments

Corporate Social Responsibility is not the norm or boon of the present day society. It was ubiquitous during early ages also.

The Four Phases of CSR Development in India[10]

The evolution of the CSR activities can be credited to the myriad problems that the firms face in their day to day functioning, accompanied by a realisation of the effects of their activities on the environment and further realizing that profits should not be the sole aim of a company’s existence.

The history of CSR in India can be divided into four phases which run parallel to India’s historical development and has resulted in different approaches towards CSR. However, the phases are not inert and the features of each phase may overlay other phases. In the first phase, charity and philanthropy were the main drivers of CSR. In this phase, the wealthy merchants used to share their wealth with the wider society and also used to help them in getting over with dark phases of famine and epidemics by providing them with the necessary grains from their warehouses. During the independence movement (Second Phase) Indian industrialists were under a great stress to depict their dedication towards the society. It was during this time only when Mahatma Gandhi introduced the concept of trusteeship. According to Gandhi, Indian companies were supposed to be the “temples of modern India” and thus motivated the industry leaders to manage their wealth in such a manner so as to benefit the society.

The third phase of CSR (1960–80) was related to the element of “mixed economy”, the emergence of Public Sector Undertakings (PSUs) and laws relating to labour and environmental standards. This period was described as an era of command and control as the private sector was surrounded by many stringent rules and regulations due to which the private sector was forced to take a back seat and public sector was considered as a driver of development[11]. In the fourth phase (1980 – 2013) Indian companies started abandoning their traditional engagement with CSR and started integrating it into a sustainable business strategy. In the 1990s, the first step was made towards globalization and liberalization. In order to give a boost to the economy, several controls and licencing rules were relaxed which resulted in an increase in the growth momentum and helped Indian companies to grow rapidly[12].

CSR: Present Scenario [13]

CSR is not a concept of the present day society but has been present in India since the antediluvian times as corporates like the Tata Group, the Aditya Birla Group and Indian Oil Corporation, to name a few, have been involved in serving the community from the inception.

Nowadays the main objective of companies is to maximize their impact on the society and stakeholders and in order to achieve their objective, many corporates indulge in various social events such as donations and charity events. CSR activities have become so embedded in a corporate’s life that they no longer consider it as an indirect expense and treat it as a route for improving their goodwill, reputation, defending attacks and increasing business competitiveness.

So, in order to give shape to their strategies, many corporates have specialized CSR teams that formulate policies, strategies, and goals for their CSR programs and set aside budgets to fund them. The policies developed by the assigned teams are always made keeping in mind the main goal of business.

For example, a more comprehensive method of development is adopted by some corporations such as Bharat Petroleum Corporation Limited, Maruti Suzuki India Limited, and Hindustan Unilever Limited. Provision of improved medical and sanitation facilities, building schools and houses, and empowering the villagers and in the process making them more self-reliant by providing vocational training and a knowledge of business operations are the facilities that these corporations focus on.

Companies with Good CSR [14]

Corporate Conscience is all about returning the favour to the society that keeps the business on the move, maybe even when the same is beyond the reach of the company. Having such a culture in the company helps the employees to know, that there is something bigger than themselves for which they are burning the midnight oil; their business is not one dimensional and most importantly it cares about the people. Companies, nowadays are encouraging their employees to break a sweat for the society also and thus try to amplify the intentions of the employees and the mission of the company.

Examples of Companies fulfilling the CSR [15]

The Tata Group conglomerate in India carries out various CSR projects, which are mostly aimed at the upliftment of the poor strata of the society. It also engages itself in the women empowerment activities, income generation, rural community development, and other social welfare programs. Apart from this, the company also engages itself in the field of education i.e. by providing scholarships to various students and institutions and healthcare services such as facilitation of child education, immunization and creation of awareness of AIDS.

Ultratech Cement, India’s biggest cement company also plays its part in social activities by carrying out philanthropic activities across 407 villages in the country. Their main focus is on health care and family welfare programs, education, infrastructure, environment, social welfare, and sustainable livelihood.

Indian automobile manufacturer Mahindra & Mahindra (M&M) strives for the promotion of education. The company focuses on assisting various economically backward sections of the society in the field of education and further provides investment in scholarships and grants livelihood training, healthcare for remote areas, water conservation, and disaster relief programs.

ITC Group, a conglomerate with business interests across hotels, FMCG, agriculture, IT, and packaging sectors has been focusing on creating sustainable livelihood and environmental protection programs. With its charitable approach, they have been able to provide sustainable livelihood opportunities for six million people. Their e-Choupal program has been a great initiative as it aims at providing internet connection to rural farmers.

BMW[16] takes pride in considering itself as one of the most socially responsible in its industry. They set a new high when they decided on helping 1 million people by 2020. Alignment has always been their key to success. They put a great example of themselves by showing that they have maintained a great balance between a good business model and helping social causes.

Thus, above mentioned are some of the companies that are abiding by the provisions relating to CSR under Companies Act, 2013 but it is also seen that CSR has not achieved its objectives in toto and have also proved to be a failure

CSR: A Failure

Mandating CSR for businesses will not do any good unless there are proper mechanisms for its enforcement. One of the main hindrances that stand in the way of effective CSR enforcement is finding credible projects that the corporates can support. According to Guardian, bigger charities are being flooded with money, while the smaller charities have to seek their way for finding of funds due to which they lack the resources and capacity to cope up with the company’s bureaucratic and operational demands[17].

According to KPMG Report, geographic bias with respect to the company’s funding of CSR activities is also prevalent, as firms tend to fund those projects that are closer to where they are based. This results in industrialized areas getting preference over the poorer and underdeveloped areas that are truly in need of some development and aid.

Fear that the companies would find their way to avoid shelling out money for CSR activities has appeared to be well founded. A survey by accountancy firm KPMG found that 52 of the country’s largest 100 companies failed to spend the required 2% last year. A smaller proportion has gone further, according to an Economic Times investigation, allegedly cheating the system by giving donations to charitable foundations that then return the monies minus a commission. The main problem with the CSR is the reported expenditure on the projects. Most firms don’t mention the exact amount of expenditure spent by them on the CSR activities. Due to this, it becomes very problematic for the government to comprehend the exact amount of funds spent by the firms in this relationship because there is evidence showing that the firms were initially spending less than 2% increased their CSR activity, but those that were initially spending more than 2% reduced their CSR expenditure. [18]

But, even if we were to take the CSR expenditure at its face value and assume the validity of all the numbers reported, there are still major issues that are to be dealt with. An expenditure that does not lead to higher profits for firms is treated as a tax by them. According to the KPMG, the corporate tax rate in India i.e. 34.61% is one of the highest in the world, compared to a global average of 24.09%. So, the CSR is viewed by the firms as a 2% tax, albeit it is not paid to the government but many companies consider the 2% CSR expenditure as another way of burning their pockets.

Even though there has been a substantial increase in the social activities incurred by the firms, but the spending has mostly gone to the set priorities of the company rather than the democratically determined priorities. Of the nine different schedules prescribed by The Companies Act, 2013 two schedules: combating various diseases and promotion of education accounted for 44% of the total CSR expenditure while reducing child mortality received no funding and eradicating extreme hunger and poverty received only 6% of the total CSR expenditure.

The fact that about 50% children in India are malnourished due to acute poverty, relief and care only appears as a distant dream to them. It is the government’s duty to determine and fulfil the needs of the society by channelizing the funds of the public. With the CSR law, the government has failed in one of its primary functions.

The issue of geographic inequity also needs to be taken into consideration as there is a wide amount of gap in spending on CSR activities between the states of India. For example, Maharashtra, Gujarat, Andhra Pradesh, Rajasthan and Tamil Nadu account for well over one-quarter of all CSR spending. Towards the bottom of the list are Nagaland, Mizoram, Tripura, Sikkim and Meghalaya—all from the North-East.

This inequity reflects the interests and priorities of the business sector. Therefore, it is the duty of the government to ensure that the society moves towards a more egalitarian society.

Issues Hindering the Corporate Social Responsibility

The earlier government used to rely on legislation and regulations for regulating the objectives of the business sectors. But, the reduction of government involvement in CSR has resulted in the exploration of non-voluntary actions.[19]

To ensure that CSR becomes a success, it is necessary that there should be a consensus among the local agencies. But, a lack of consensus, results in duplication of activities by the corporates which further results in generating a competitive spirit between the local agencies rather than a collaborative approach.

The success fruit of CSR can only be plucked when there exists knowledge about the CSR activities within the local communities. Since not much efforts have been put in creating awareness about the CSR activities, thereby it has resulted in a lack of interest on part of local communities in participating towards CSR activities.

Also, there is non-availability of well-organized governmental or non-governmental organizations in remote and rural areas. Due to the absence of any proper authority, the needs of the rural people often gets unnoticed and there remains no proper authority along which a company can assess and identify the needs of the society.

Further, the key to any successful CSR initiative is transparency, but there are certain perceptions that partner NGOs or local agencies do not disclose the information about their programs, address concerns, assess Impacts and utilize funds. This lack of transparency creates an indelible impact on the relationship and trust between the companies and local communities which is the key to the success rate of any CSR initiative.[20]

In order to ensure that the CSR activities are carried out in an efficient and effective manner, it is necessary to ensure that each organization and institution is well equipped with proper resources. But due to a dearth of trained and effective organizations, fulfilment of CSR initiatives, appears to be a distant dream. This results in the compromise and limitation of various CSR initiatives.

Various analysis shows that the law in its current form is failing to promote healthy CSR initiatives due to its poor enforcement and lack of clear obligations. The legal provisions related to CSR contains vague language which results in a high degree of self-interpretation.[21] Another flaw from which the CSR has to struggle is that the Act doesn’t penalize a defaulter and just allows them to walk away with an explanation regarding their failure on CSR activities. This results in high corruption, low levels of public confidence, low development and weak institutions.

Recently Maneka Gandhi also criticised the corporate houses for not taking the CSR initiatives seriously. Her criticism was in lieu of the poor response given by the corporate houses to Prime Minister Narendra Modi’s call of using the CSR route for Swacch Bharat Abhiyan.

Many corporate houses state that continuous changes and amendments in the law cause a great amount of confusion. As in the last one year, scores of changes have been made to the rules regarding the CSR law. For example, just a day before the law came into force, the government brought in changes in the list of activities eligible for CSR funding by including activities promoting healthcare and preventive healthcare. In January this year, the government clarified the types of organisations through which the CSR money can be spent.[22]

Conclusion

Corporate Social Responsibility has become an innate part of the working of Corporates in recent times. Though the concept of CSR was prevalent in India since antediluvian times, it is only, recently that the concept has picked favouritism in the companies. A new urgency in the backdrop of heightened awareness has single-mindedly changed the focus of the firms on Corporate Social Responsibility. It is CSR only that helps the environment and society to be treated the way they should be treated i.e. with respect. Although, CSR, has really proved to be fruitful and beneficial but to say that it has totally achieved its objectives, would be to negate the truth. Much needs to be done on this staid and sombre issue. If we have a closer look to this picture, we will find that the situation is quite antonym and astounding as due to lack of proper enforcement mechanisms and efficient CSR policies, the success of CSR remains a distant dream. The government should comprehend that corporates play an important role in the development of a nation and thereby they should make proper policies for the same and should ensure that apart from bigger charities, small charity organisations also get their due recognition. The government should also take initiatives in ensuring that all the areas get benefited from the social work of companies so that the disparity and bigotry among various regions gets converted into equality. The root cause of less success rate of CSR is the consideration of CSR as another form of tax that lingers on the necks of corporate heads. The government should thus safeguard that the perception and discerning of people gets improved. They must work towards developing a feeling of empathy in them, as this will not only make them motivated to do the right work but will also encourage them to report the right CSR expenditure. But, the problem does not finish there, as a lot of other quandaries still continue to haunt the government and among them, the most pivotal and fundamental is the lack of knowledge about CSR activities among remote areas and lack of any penalizing provisions. In order to tackle this oblivion among the companies, the government should constantly thrive towards promoting the same and thus should try to bring some penalizing provisions for CSR, as a pocket burn will give the strongest message to the companies. Apart from this, the government should also ensure that there is enough transparency and consensus in the whole process of Corporate Social Responsibility. But, a colourful change to this reprehensible situation can only be brought, when to work for the society comes from one’s own conscience. Government endeavours will all prove futile, if the yearning and longing to work for the benefit of the environment and society does not come to companies from innate and as it is rightly said that you can only bring the horse to the pond but can’t make it drink the water.

References

[1] Corporate Social Responsibility- Meaning, Needs and its Evolution,Management Study Guide(8 June 2018, 11:00 A.M.)https://www.managementstudyguide.com/corporate-social-responsibility.htm.

[2]Definitions of Corporate Social Responsibility- What Is CSR?,Mallen Baker (June 8, 2018, 11:15A.M.)http://mallenbaker.net/article/clear-reflection/definitions-of-corporate-social-responsibility-what-is-csr.

[3]Ellie Collier, The Importance of Corporate Social Responsibility for your Business (June 8, 2018, 7:30 P.M.) https://www.highspeedtraining.co.uk/hub/importance-of-corporate-social-responsibility/.

[4]Ibid.

[5]Business benefits of Corporate Social Responsibility, High Speed Training (June 8,2018, 7:45 P.M.) https://www.highspeedtraining.co.uk/hub/importance-of-corporate-social-responsibility/.

[6] Importance of Corporate Social Responsibility, Management Study Guide(June 9, 2018, 10:45 A.M) https://www.managementstudyguide.com/importance-of-corporate-social-responsibility.htm.

[7]Samantha Muir, Top 5 Benefits of Corporate Social Responsibility, Cube Group (June 9, 2018, 10:30 A.M.)http://cubegroup.com.au/top-5-benefits-of-corporate-social-responsibility.

[8]Sec. 135. (1) Every company having net worth of rupees five hundred crore or more, or turnover of rupees one thousand crore or more or a net profit of rupees five crore or more during any financial year shall constitute a Corporate Social Responsibility Committee of the Board consisting of three or more directors, out of which at least one director shall be an independent director.

(2) The Board’s report under sub-section (3) of section 134 shall disclose the composition of the Corporate Social Responsibility Committee.

(3) The Corporate Social Responsibility Committee shall,—

(a) formulate and recommend to the Board, a Corporate Social Responsibility Policy which shall indicate the activities to be undertaken by the company as specified in Schedule VII;

(b) recommend the amount of expenditure to be incurred on the activities referred to in clause (a); and

(c) monitor the Corporate Social Responsibility Policy of the company from time to time.

(4) The Board of every company referred to in sub-section (1) shall,—

(a) after taking into account the recommendations made by the Corporate Social Responsibility Committee, approve the Corporate Social Responsibility Policy for the company and disclose contents of such Policy in its report and also place it on the company’s website, if any, in such manner as may be prescribed; and

(b) ensure that the activities as are included in Corporate Social Responsibility Policy of the company are undertaken by the company.

(5) The Board of every company referred to in sub-section (1), shall ensure that the company spends, in every financial year, at least two per cent. of the average net profits of the company made during the three immediately preceding financial years, in pursuance of its Corporate Social Responsibility Policy:

Provided that the company shall give preference to the local area and areas around it where it operates, for spending the amount earmarked for Corporate Social Responsibility activities:

Provided further that if the company fails to spend such amount, the Board shall, in its report made under clause (o) of sub-section (3) of section 134, specify the reasons for not spending the amount.

[9]CA Divyang Gupta, Corporate Social Responsibility- Companies Act, 2013, TaxGuru (June 9, 2018, 11:30 A.M.) https://taxguru.in/company-law/corporate-social-responsibility-companies-act-2013-2.html.

[10]Evolution of Corporate Social Responsibility In India, Wikipedia Mirror Project, (June8, 2018, 11:45 A.M.) https://ipfs.io/ipfs/QmXoypizjW3WknFiJnKLwHCnL72vedxjQkDDP1mXWo6uco/wiki/Evolution_of_corporate_social_responsibility_in_India.html.

[11]SawatiNagwan, Evolution Of CSR in India, Volume 3 Issue 7 July, 164-165, (2014).

[12]Evolution OF CSR in India, Soul Ace (June 8, 2018, 01:05 P.M.) http://www.soulace.in/blog/evolution-of-csr-in-india/.

[13] Supra Note to 4.

[14] Lexie Forman Otiz, Top 10 Corporate Social Responsibility Initiatives, Smart Recruiters (June 9, 2018, 12:15P.M.) https://www.smartrecruiters.com/blog/top-10-corporate-social-responsibility-initiatives/

[15]Dezan Shira & Associates,  Corporate Social Responsibility In India, India Briefing( June 9, 2018, 12:45 P.M.) https://www.india-briefing.com/news/corporate-social-responsibility-india-5511.html/

[16]Omid Ghiam, 5 Examples of Corporate Social Responsibility in Companies, Involve Soft (June 9, 2018, 2:00P.M.)https://www.involvesoft.com/5-examples-of-socially-responsible-companies/.

[17] Oliver Balch, Indian Law requires the Company to give 2% to charity. Is it working?, The Guardian (June9, 2018, 2:30P.M.) https://www.theguardian.com/sustainable-business/2016/apr/05/india-csr-law-requires-companies-profits-to-charity-is-it-working.

[18]AneelKarnani, Why the CSR law is not a success, Live Mint ( June 9, 2018, 2:40 P.M.) https://www.livemint.com/Opinion/1wIQwFPRyRckBMg5IugW1K/Why-the-CSR-law-is-not-a-success.html.

[19] Syed Kazim, Corporate Social Responsibility, Issues and Challenges in India, The Companion ( June 9, 2018, 3:30 P.M.) http://thecompanion.in/corporate-social-responsibility-issues-and-challenges-in-india/.

[20]Anand Das Gupta, Implementing CSR in India: Issues and Beyond, 24-26,   file:///C:/Users/Guest/Desktop/kidnapping/9788132216520-c1.pdf.

[21]Ameeta Jain &Sandeep Gopalan, Legislative Response is required to push CSR in India, The Conversation (June 9, 2018, 4:00P.M.) http://theconversation.com/in-india-a-legislative-reform-is-needed-to-push-corporate-social-responsibility-80169.

[22] Savita Verma, Irresponsible Gaps in Corporate Social Responsibility, Down to Earth (June 9, 2018, 6:00 P.M.) http://www.downtoearth.org.in/news/irresponsible-gaps-in-corporate-social-responsibility-50990.

The post Corporate Social Responsibility in India: Triumphs and Failures appeared first on iPleaders.

This article is written by Mohona Thakur from Team iPleaders.

During a three-day Certificate Course on Media and Entertainment Law about 3 years ago at my alma mater, ILS Law College, Pune, I had the good fortune of being a part of an hour long session by Mr. Ameet Naik, the Founding Partner of Naik Naik & Co.

During this one hour of good fortune, Mr. Naik took us through his days of struggle as a young advocate and what led him to form his own law firm. He spoke about why he chose such a niche sector – media and entertainment – to focus his firms practice on, at a time when bollywood in itself was struggling to come of age.

Think about it. While we see so many law firms in India thriving and garnering success because they have a strong transactional or general corporate practice, how many law firms do you know of that are well-known for their practice in media and entertainment laws? How many of them took a chance and ventured out to build a career in this niche and upcoming field of law?

I took the liberty of doing a little bit of research to find out about firms, known names and cases they have to their credit in the media and entertainment sector. Here is what I could come up with:

• Naik Naik & Co.

Established in 2004, the firm boasts of a large clientele with big names from the industry such as Mr. Amitabh Bachchan, Ms. Deepika Padukone, Ms. Sonam Kapoor amongst many others. It also represents productions houses such as T-Series, Viacom 18, Endemol and Tips Industries.

With major wins such as securing the stay on the ban notified by four states of India on the screening of Padmavat earlier in the year to the recent win in the Supreme Court for Madhur Bhandarkar and Bharat Shah on the release of their movie Indu Sarkar. Not only does the firm have major wins to their name, but also a number of crucial judgments in the media space are thanks to them. Be it the judgment passed by the Supreme Court in the Aarakshan Case in 2011 which is now considered a landmark, to securing John Doe orders from the high courts in India to fight the menace of piracy, the firm has a lot of golden hats in its kitty!

In addition, the firm believes in delivering results and relies heavily on the domain knowledge of its resources for the turnaround time. They don’t just understand the law, but also understand the business, which helps them deliver better results than their contemporaries in the market.

Ms. Madhu Goradia and Mr. Ravi Suryavanshi are the partners who deal with the Telecom Media and Technology (TMT) practice of this firm. Ms. Goradia alone has represented clients in over 500 cases!

With three office in Bombay and numerous accolades, I believe it is safe to say that Naik dominates the legal business in the media industry. In case you’d like to know more about the firm and their practice, you can visit their website here.

• DSK Legal

The firm has a multi-disciplinary team with over a 100 lawyers spread across their offices in Mumbai, Pune and Delhi. If we are to look specifically at the team members that work in the IP Law and TMT sector, three names would have to be mentioned: Mr. Anand Desai (Managing Partner), Ms. Chandrima Mitra (Partner) and Mr. Tushar Ajinkya (Partner).

DSK Legal has been handling both disputes as well as transactions for its media clientele. This is the law firm that represented Salman Khan in the 2002 hit and run case and responsible for the speedy bail they received in the matter within 5 hours of the sentence being pronounced.

On the transaction side, Aamir Khan is an old client of Mr. Desai. The firm was responsible for structuring a finance-cum-distribution deal with PVR for Aamir Khan. Mr. Desai was also responsible for structuring the co-production between Sanjay Leela Bhansali and Sony Pictures for the movie Saawariya. Back then , it was one of the very first times that a major foreign company was co-producing a movie in India and it was absolutely important that the rights to exploitation of the film were negotiated well.

Being a full-service law firm, DSK also advices some of its media clients on tax issues. A number of producers in India look at the option of vesting their rights in the film in Mauritius to save up on tax, especially with the increasing revenue being generated from abroad. Hence, legal advisory on tax is also a service that this firm offers to its media clientele

• Saikrishna and Associates

A pioneer in intellectual property laws, Saikrishna and Associates is a full-service law firm with over a 100 lawyers and 19 Partners and Associate Partners. The key names to note here are Mr. Saikrishna Rajagopal (Managing Partner), Mr. Ameet Datta (Partner, IP and TMT), and Ms. Monica Datta (Partner).

Established in 2001, the firm not only has a huge clientele that includes industry giants such as Star India and Amazon, but also has landmark judgments to its credit. The Doordarshan sports broadcast decision of the Delhi High Court wherein the High Court ruled that Prasar Bharti could only air the footage that other sports broadcasters share with it as mandated by law on terrestrial TV and not on Cable TV is one of the many.

More recently, Sai Krishna was also responsible for securing an order from the Competition Commission of India (CCI) approving the release of Avengers: The Age of Ultron after the commission found no anti-competitive behaviour by the Hollywood producers. The firm was acting on behalf of their client Walt Disney.

• Nishith Desai & Associates (NDA)

NDA has been in the news for providing all-around services in the media and entertainment sector to a number of big names in the industry such as the Times Group, Wipro, Reliance Entertainment, Warner Brothers Entertainment Inc., Sahara, MTV, etc. Gowree Gokhale is the Partner concerned for Intellectual Property and TMT.

The firm specialises in advising the entertainment industry on 14 different aspects: Strategy, Structuring, Regulatory, Documentation and Advisory, IP Advisory, Due Diligence, Production Counsel, Talent Arrangements, Sports, Online Gaming and Casino Laws, Print Media, Joint Ventures and M&A, Capital Markets and Funds & Investments, and Litigation.

To mention a few of their important achievements, they have assisted clients in their proposed bids for the Indian Premiere League for the broadcasting rights and their proposed bids for acquiring Indian Premiere Leagues’ franchise teams. In addition, NDA acted as production counsel to the critically acclaimed Indian film “Black”. As production counsels for “Black”, they advised the client on a host of intellectual property issues arising out of the production of the film.

• Krishnamurthy and Co. (KLaw)

Nikhil Krishnamurthy is the key person responsible for setting up the Entertainment and Media law practice at KLaw. A former partner at Anand and Anand, Nikhil moved to KLaw as Senior Partner in 2006.

Mr. Krishnamurthy works out of the Bangalore office and has experience of over 18 years. The firm specialises in cases on intellectual property law (IP Litigation), entertainment law, music law, content acquisition, licensing and information technology.

In an interview with indianlawyer250.com, he spoke about his role in India’s first case concerning compulsory licensing of music for radio broadcasting. He represented the FM Radio broadcaster (Music Broadcast) and filed the first application before the Copyright Board under the provisions for compulsory licensing for the purpose of radio broadcast in 2001. The provision had never been exercised in the 43 years that the Copyright Act 1957 had been in force. This very case spun a series of litigations that eventually led to amendment of the Copyright Act in 2012.

Are these the only law firms that specialise in Media and Entertainment Laws?

No. This is not an exhaustive list. There are a number of other law firms that have a legal team dedicated to the TMT sector such as Khaitan & Co. and Anand & Anand & Khimani. In addition, TMT Law, a boutique law firm dealing with specifically the TMT sector headed by NLS alumnus Abhishek Malhotra, recently merged with Bharucha & Partners and has a flourishing media litigation practice!

The question for many law students and aspiring media lawyers still remain the same: how do we make it to these law firms? What will it take to land a job here?

The first step is to know the basics of media and entertainment laws and as we can clearly see, with the sort of work these law firms do, a clear understanding of the media industry and the legal/business issues it faces is critical.

Unfortunately, most law schools in India do not teach media and entertainment laws as a course subject at all, and some of them now teach Intellectual Property Rights, although not at all adequately. There are two ways to go about this, either you land a job (somehow) and learn on the job; or you make a conscious decision of learning the law through the available resources at hand. You could keep a tab on the media and entertainment law columns on Legally India, Bar and Bench and Live Law. You could regularly keep reading blog posts and articles on the industry and watch the news! In addition, you can take up a media law course online that offers you industry insights and networking opportunities with lawyers working exclusively in this industry. And if you’re looking for easy information on the kind of work media lawyers do, there is always SuperLawyer for practical insights!

In my limited experience, the industry is tight-knitted and making it here is difficult to be absolutely honest. The sector is niche, the number of people rooting for a job at these law firms are in hundreds if not thousands, and the positions available are limited. You’ve got to be mentally prepared for a fight, however, with the right set of skills and domain-knowledge, you may be able to set yourself apart!

Don’t stop learning!

The post 5 Law Firms In India With The Best Media Law Practice appeared first on iPleaders.

In this article, Sonal Sharma discusses kinds of work lawyers in general corporate practice do.

Introduction

India has been ranked 11th in the Global FDI Confidence Index 2018, making it the 2nd highest ranked emerging market for Foreign Direct Investment. With the scope of corporate industries and businesses increasing with time in India, there is a growing demand for a wide array of professionals in this sector.

The Bar Council of India’s official website mentions that the Indian legal profession consists of approximately 12 lakh registered advocates and approximately 60,000–70,000 law graduates from over 900 law schools join the legal profession in India every year. The practice of law has, however, changed drastically in the past few decades, the primary reason for the same is the liberalisation and growth of the Indian economy. The scope of the corporate legal sector is rapidly growing and has started outsourcing the legal service sector in India.

What does a corporate lawyer do?

If a law student wishes to pursue a career in the corporate sector, the following posts are generally available depending on the skills and capabilities of an individual:

• Legal officer/manager
• Legal advisor
• Legal associate

A lawyer in a corporate setup mainly looks after the working of the corporation as per the governing rules and regulations of its authority supervising it. He is required to advise and take required action on a particular legal issue, within his authority.

A corporate company may either hire different in-house counsels, specialising in various legal departments for their work and they can look after all the legal matters of the company or, a company can hire a law firm in case of need for legal assistance for a specific issue. There is also a third procedure that is sometimes followed where an in-house counsel is authorised to hire or take the assistance of a law firm for a specific issue, i.e. the in-house counsel is given the responsibility to engage with a firm, he finds fit for the task and solves the issue accordingly.

Following are the various tasks a corporate lawyer has to undertake for the corporation:

Legal documentation

Right from the formation or establishment of a company or a corporation, a need for a legal attorney arises for the creation of a contract of incorporation and employment for its workers. Corporate attorneys help with the basic legal work related to establishment, organisation, dissolution of the company and also advise on the duties and responsibilities of the employees. They draft and review articles which elaborate on the creation of the company and specify the management of internal affairs. They may also be given the responsibility of formation of documents containing-policies, organisational structures, rules, licenses etc. in case of any dealings, business collaboration and negotiating commercial agreements in case of a transaction with other companies or trusts.

Attorneys may even be asked to form employment contracts, confidentiality agreement, agreements for breach or non-compliance with the contract etc.

Assistance regarding Mergers and acquisitions

A corporate lawyer dealing in mergers and acquisitions has to mainly provide assistance and suggest the legal ways to raise funds for the company and/or make space for the company in the market. One of the most common ways to earn money or acquire capital for running a corporation is buying and selling of a business or its assets. The lawyer has to prepare the documents and negotiate deals with the clients (if he is authorised to do so) or advise about the capital benefits on mergers/demergers/joint ventures across a wide range of industry sectors to the higher authorities.

In case of an agreement involving international clients, the lawyer also has to take care of the foreign laws and ensure that the deal is being carried on in compliance with the applicable regulations.

Look after Intellectual properties

Intellectual property includes copyrights, patents and trademarks which deals with protecting an idea, business strategy or trade secrets which are not to be used or copied by others.

• Trademarks- generally include logos, brands, phrases etc.
• Copyrights- protect the creation of the artists like photographs, designs, paintings, music, and write-ups.
• Patents- include the invention or an essential feature of a product or process of manufacturing a product which is not obvious.

A company employs an intellectual property attorney to handle all such issues related to a company’s intellectual property. A lawyer has to ensure the protection of the company’s properties containing intellectual assets and file patents, copyrights and trademarks accordingly.

Handle Taxations

Tax lawyer helps a business run in accordance with the applicable laws by filing its tax returns. A tax lawyer gives suggestions on all tax-related issues of the company and ensures the legality of the commercial activities of the company. The lawyer may also suggest valid deductions, exemptions, and credits to relax the tax burden on a company by saving funds.

Corporate Litigation

Many a time, a lawyer in an organisational setup also has to practice litigation in relation to any business dispute of the company. The suit may be for a breach or violation of the terms of a contract by a party, taxation laws, mergers and acquisitions, intellectual property, corporate and real estate issues etc.

The daily job of a business litigator may include dealing with external counsels and resolving litigations, appearing before the court and addressing legal matters, drafting notices, affidavits, statements, plaint and petitions in a court. Many companies do not hire business litigators separately but ask the lawyers in the respective legal departments to take up the case falling within their area of expertise.

Advisory services

The primary task of a legal service advisor is to research and assist with various legal issues. The advisors often consult with the lawyers in different departments of a company (if present) to provide accurate and precise advice for the company.

Corporate Finance

The role of a corporate lawyer is often drawn with the responsibility of managing the private equity of the firm/company. A private equity lawyer advises on the structure of funds and investments, negotiates deals with other companies, advises on exits, and assists in raising funds for the company. You can learn more about the work of a private equity lawyer by clicking on this link.

Corporate recovery

The main task of a corporate recovery lawyer is to advise the creditor on different aspects of administration, rescues and liquidations, enforcement of securities etc. They advise on the procedure for debt recovery and file a suit for the same as and when required.

Commercial assistance

Commercial lawyers within a corporation advise on various sale and trade-related issues. These lawyers generally advise on how to manage and grow the business of the company. They also advise on manufacturing, marketing and distribution in order to expand the market for the business of the company.  

What are the pros and cons of working as a Corporate Lawyer in India

Though working in every field has its charm, but before choosing a career path, it is essential to understand the requirements and prospects of it thoroughly. Here are a few pros and cons that can help you to decide if you should opt for a career in Corporate Law:

Pros

1. No need to establish yourself – Unlike litigation, working in a corporate setup does not involve setting up your own business and establishing yourself, instead, you get paid a stable and specific amount of salary every month.
2. High paying job – A corporate lawyer is known to be among the highest paid employees of a company/firm.
3. Job security – Corporate law offers a comparatively more secure job if you work hard and also a considerable amount of time is given to the employee to look for a new job in case one has to quit.

Cons

1. Fixed working environment – A corporate set-up provides fixed working hours and place which doesn’t give space for an employee to explore more.
2. Hectic Schedule – Corporate lawyers are one of the most overburdened employees of a company and often do not get time for their families at all.
3. No say in decision making – Since a lawyer in a firm/company is asked to deal with or resolve certain legal matters he is not authorised to make decisions and has just an advisory role to play.

How to build a practice in corporate legal sector in India

Corporate legal practice in India is most sought for career among law students today. What it takes to build an excellent corporate legal practice in India? Hard work today, although an important part, but is not sufficient in itself. Hard work combined with efficient practical learning coupled with association with platforms which can provide you opportunities for honing your skills in the practical sphere of law is required today for building a strong practice in Indian corporate legal sector. Drafting, Vetting of Contracts, learning the basics of due diligence, understanding the first step of a Merger, these are the few important aspects of law, a law student needs to understand before even starting a practice as a transactional lawyer. Courses like these are helping law students a great deal. Law School syllabus in India rarely teaches a law student the actual ongoing issues in law.

What you need to learn as a law student for getting into corporate law?

• You need to learn how to structure a business and choose a form most suitable for your requirements.
• How to create an entity with that structure and deal with basic accounting, taxation and import export related requirements which any business would have to deal with.
• How to set up and implement corporate governance mechanisms within your entity.  
• You need to learn about contracts useful for businesses, the different parts of a contract and how these are negotiated and drafted. Contracts are almost a daily phenomenon in any business and so, this is a high utility module.

How to learn these skills

Lawyers, if you are looking to speak the language of your clients and support them at each stage of their business journey, this course will not only guide you about the stages the business will go through, but also inform the applicability of law at each stage. It will take you through the required compliance with detailed procedures and ample ready to use templates. This course can also help young litigators identify and capitalise on business opportunities early on. It can be a great support to your practice.

For professionals employed in the legal department, this course can not only guide on the applicability and how to comply, it can help on setting up compliance mechanisms and standing out in the eyes of your employers.

For law students, this course will act as the perfect bridge between what you learnt at law school and what you are going to face when you work or get into practice. You will be the one fresher who knows stuff without actually having worked at it, right from the daily grind of industry experts. You will be coached and mentored by professionals who have been achievers in their own fields.

Conclusion

“Find a job you enjoy doing, and you will never have to work a day in your life.”

• Mark Twain

It is essential for a student to look for a suitable profession or a field that interests him/her in order to be successful and enjoy the work at hand.

Since a wide variety of opportunities and career options are available to a student passionate about the law, it is crucial that he/she takes his/her time to know exactly what to choose next. There are a number of subjects taught to a student in a law school every semester. One must explore the subjects they find appealing, and try to get a practical experience on that topic, which can help him/her further decide a career path for their professional life.

References

1. https://www.imf.org/external/pubs/ft/wp/2004/wp0464.pdf
2. http://www.dphu.org/uploads/attachements/books/books_3955_0.pdf
3. http://www.mca.gov.in/Ministry/pdf/CompaniesAct2013.pdf
4. https://www.hg.org/corporate-law.html
5. http://www.barcouncilofindia.org/

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In this Guest Post, Akash Kori discusses the laws relating to the Third Gender and Homosexuality in India.

Introduction

Transgender, is a term that defines a spectrum for people whose identity, expression, behaviour, or a general sense of self, does not conform to what is usually associated with the sex they were born. It is often said sex is a matter of the body, while gender occurs in the mind. Gender is an internal sense of being male, female, or other. People often use binary terms, for instance, masculine or feminine, to describe gender just as they do when referring to sex. But gender is more complex and encompasses more than just two possibilities. Gender is also influenced by culture, class, and race because behaviour, activities and attributes seen as appropriate in one society or group may be viewed otherwise in another.

On an estimate, India has about a million transgender humans. In India, a common term used to describe transgenders, transsexuals, crossdressers, eunuchs, and transvestites is Hijra. They live on the fringes of society, regularly in poverty, ostracised due to their gender identity. Maximum make a living through singing and dancing or by means of begging and prostitution. Due to the fact that hijras do not have reproduction capacities as either guys or ladies, they are neither men nor girls and claim to be an institutional “Third Gender”.

What does Transgender Mean?

Transgender is an umbrella term that incorporates more possibilities of a gender identity than just being binary. Gender identity refers to someone’s inner experience of being male, female or anything that they want to be identified as. Gender expression refers to the manner a person communicates gender to others through behaviour, apparel, hairstyles, voice or frame characteristics. “Trans” is every so often used as shorthand for ‘transgender’. Although, not all people whose appearance or behaviour is gender-nonconforming, will pick out as a transgender man or woman. In the current paradigm, the transgender human beings are talked about and there is a discourse about them in cultures and academia which are subsequently affecting people’s consciousness, understanding, and openness to transgender people.

Transgenders in our society encompass all races and ethnicity, yet they’ve never enjoyed a first-rate lifestyle due to the misinformed prevalent notion of ‘what they’re’ and ‘how they’re’ according to the society. In reality, they’re subjected to confusion and pain on account of the inflexible compelled conformity to sexual dimorphism. They have to deal with disparities related to societal stigma, discrimination and denial of their civil and human rights. Discrimination in opposition to them has been the major cause of substance abuse and suicides among them. To make it worse, this discrimination starts inside the areas of their own family existence which transcends into their social life, education, health and so on.

Section 377 found a place inside the Indian Penal Code prior to the enactment of Criminal Tribes Act that criminalized all penile-non-vaginal sexual acts between men and women, which included anal sex and oral intercourse, at a time when the myopic view regarding transgender humans was their association with the aforementioned sexual walkthrough.

Reference may be made to the judgment of the Allahabad High Court in Queen Empress v. Khairati (1884) ILR 6 ALL 204, wherein a transgender is arrested and prosecuted under Section 377 on the suspicion that he changed into a ‘habitual sodomite’. However, an acquittal was granted on appeal. This judicial precedent is highly in contrast to the historical instances in India where the transgender community has a robust ancient presence in the Hindu mythology and different non-secular texts. Hijras also played a prominent role in the royal courts of the Islamic international, particularly in the Ottoman empires and the Mughal rule in medieval India.

Constitutional Rights: LGBT

The Constitution provides for protection under the Fundamental Rights chapter to all humans with a few rights being restrained to only citizens. Beyond this categorization, the Constitution makes no further distinction amongst the rights holders. The Preamble of our Indian Constitution mandates Justice – social, monetary, and political equality of status.

The Constitution provides for the fundamental right to equality and tolerates no discrimination on the grounds of sex, caste, creed or religion. The Constitution additionally guarantees political rights and other benefits to each citizen. However, the third community (transgenders) is still ostracized. The Constitution affirms equality in all spheres however the moot question is whether or not it’s being implemented.

Most of the contraptions by means of which the Indian state defines civil personhood, gender identity is a vital and unavoidable class. Identification on the idea of sex within male and woman is a vital aspect of civil identity as required throughout the country. The Nation’s coverage of spotting only sexes and refusing to recognize hijras as ladies, or as a third intercourse (if a hijra desires it), has deprived them of numerous rights that Indian citizens take. Those rights consist of the right to vote, the right to own property, the right to marry, the proper to claim a proper identity via a passport and a ration card, a driver’s license, the right to education, employment, fitness so on. Such deprivation secludes hijras from the very material of Indian civil society.

Questions Relating to ‘Third Gender’

• Why are some people transgender?

There is no single explanation for why a few people are transgender. The variety of transgender expression and reports argue against any easy or unitary rationalization. Many experts believe that biological factors which include genetic influences and prenatal hormone levels, acknowledged later in adolescence or maturity may also all contribute to the improvement of transgender identities. This is a discussion that goes beyond the scope of the article but for a layman’s knowledge, transgenders are not defective people. They are humans with the same cognitive abilities as a man or a woman.

• How does someone know that they are transgender?

Transgender human beings revel in their transgender identification in a diffusion of ways and can turn out to be privy to their transgender identification at any age. Some can trace their transgender identities and emotions returned to their earliest reminiscences. They will have indistinct emotions of “no longer becoming in” with humans in their assigned sex.

Others become privy to their transgender identities or begin to explore and revel in gender-non conforming attitudes and behaviours during youth or later in life. A few include their transgender emotions, at the same time as others struggle with emotions of shame or confusion. Folks who transition later in existence may have struggled to healthy incompetently as their assigned sex most effective to later face dissatisfaction with their lives. Some transgender humans, transsexuals, specifically, experience extreme dissatisfaction with their sex assigned at birth, bodily sex characteristics, or the gender position associated with that sex. These people often are trying to find gender-maintaining remedies.

• Is being transgender an intellectual disease?

A psychological phenomenon is taken into consideration as an intellectual disease only when it is a reason for great distress or incapacity. Many transgender human beings do not experience their gender as distressing or disabling, which implies that figuring out that you are a transgender does not represent a mental sickness.

For those individuals, the actual mental hassle is finding low priced resources, inclusive of counselling, hormone therapy, medical processes and the social help essential to freely express their gender identity and reduce discrimination. Many other barriers may additionally lead to distress, together with a loss of attractiveness within society, direct or indirect stories of discrimination, or assault.

• What are a few classes or forms of transgender humans?

Regularly, transsexual humans adjust or wish to regulate their bodies through hormones, surgery or other methods to make their bodies as congruent as possible with their gender identities. This technique of transition through clinical intervention is regularly referred to as sex or gender reassignment. It is also called gender confirmation. Folks that were assigned girl, however, identify and live as male and regulate or wish to regulate their bodies through scientific intervention to extra closely resemble their gender identity are known as transsexual guys or ‘trans men’ (also known as lady-to-male or FTM). Conversely, individuals who had been assigned male, however, discover and live as a woman and modify or wish to alter their our bodies through scientific intervention to greater closely resemble their gender identity is referred to as transsexual women or trans women (additionally called male-to-woman or MTF). A few those who transition from one gender to every other option to be referred to as a person or a girl, rather than as transgender.

Folks that go-dress put on garb this is traditionally or stereotypically worn by way of another gender of their subculture. They vary in how completely they go-get dressed, from one article of apparel to fully go-dressing. People who pass-get dressed are usually comfortable with their assigned sex and do not want to trade it. Cross-dressing is a form of gender expression and is not always tied to erotic interests. Cross-dressing is not indicative of sexual orientation. The diploma of societal recognition for move-dressing varies for women and men. In a few cultures, one gender may be given greater range than any other for carrying apparel associated with a different gender.

The term drag queens generally refer to guys who get dressed as ladies for the motive of wonderful others at bars, clubs, or different events. The time period drag kings refer to women who dress as guys for the purpose of pleasing others at bars, clubs, or other occasions.

Genderqueer is a term that a few humans use who identify their gender as falling outside the binary constructs of “male” and “woman.” They will define their gender as falling somewhere on a continuum between male and woman, or they may outline it as fully extraordinary from these phrases. They will additionally request that pronouns be used to consult them which are neither masculine nor feminine, which include “zie” in place of “he” or “she,” or “hir” rather than “his” or “her.” a few genderqueer people do no longer perceive as transgender.

Different categories of transgender human beings consist of androgynous, multi-gendered, gender nonconforming, third gender, and two-spirit human beings. Genuine definitions of these phrases vary from individual to character and might alternate through the years, however, often consist of a sense of blending or alternating genders. A few folks who use these phrases to explain themselves see conventional, binary standards of gender as restrictive.

• What is the relationship between gender identity and sexual orientation?

Gender identity and sexual orientation are not the same. Sexual orientation refers to an individual’s enduring physical, romantic, and/or emotional appeal to any other man or woman, whereas gender identity refers to one’s inner experience of being male, female, or something else. Transgender human beings can be lesbian, gay, bisexual, or asexual, simply as non-transgender people can be. A few current pieces of research have shown that a trade or a brand new exploration period in associate attraction may additionally occur at some stage in the manner of transition. But, transgender humans typically continue to be as connected to loved ones after transition as they have been earlier than transition.

Transgender human beings commonly label their sexual orientation using their gender as a reference. For example, a transgender girl, or a person who’s assigned male at start and transitions to a girl, who’s attracted to different women could be recognized as a lesbian or gay woman. Likewise, a transgender man or someone who’s assigned lady at start and transitions to male, who’s attracted to different guys, would be recognized as a homosexual guy.

Homosexuality: Rights of the LGBT

The transgender ruling was not about Section 377 and the court took pains to clarify that. But Section 377 remains the elephant in the room that cannot be wished away. Sex is part of the package.

A Fresh Look at Homosexuality

The legitimate role of the scientific and psychiatric classificatory structures on homosexuality is that it is far an ordinary variant in the psychosexual improvement. This is a nice approach to understand homosexuality. In the past, it was related to sin and crime and hence those people with a homosexual orientation were ostracized in society. With this new technique, they may have a healthful area in society.

While welcoming and agreeing with a high-quality belief of homosexuality, it is tough to simply accept the position that homosexuality is a regular psychosexual improvement. It is, in truth, an aberration inside the psychosexual development, resulting from genetic and psychosocial elements for which the person is not always accountable. There are research findings, which endorse that there are structural variations inside the brains of humans with homosexual orientation.

Homosexuality is not always statistically and biologically analysed. Statistically, it isn’t always regular because of its bureaucracy skewed inside the normal distribution. Each biological function has a physiological goal and purpose. The sexual hobby has desires. One is procreation to guard the continuation of the species. The second one is the experience of pride, which in truth, is to facilitate the sexual pastime and to reinforce the bond between husband and wife.

Homosexuality negates one of the desires of sexual interest procreation. Homosexuality has, therefore, to be considered as an aberration in the psychosexual improvement as a result of genetic and psychosocial factors. People with gay orientation aren’t responsible for this aberration. It is not a sin to be discriminated towards. It is not a criminal offence to be punished. It is not a psychiatric ailment desiring treatment despite the fact that people with a homosexual orientation can regularly expand anxiety and melancholy needing treatment if they’re ostracized in society. Because homosexuality is neither a sin nor a criminal offence, the freedom of these with a gay orientation to stay a satisfied existence must not be interfered with.

While society accepts homosexuality undoubtedly, those with a homosexual orientation should also receive their psychosexual repute gracefully and get on with existence. As a possible response to society’s prejudice and discrimination, there seems to be an inclination for them to aggressively declare normality in their sexual orientation. In addition, they seem to say too much about private freedom and rights. Personal freedom and rights are usually confined to some extent, so long as we stay in a social organization. There are distinct components of homosexual behaviour which could come into the struggle with social expectations, religious ideas, and thoughts of morality. People with gay orientation ought to recollect all these and must be organized for compromises.

Law and Justice

The Supreme Court rulings on Section 377 (Naz Foundation vs. Government of NCT of Delhi and Others & Suresh Kumar Koushal and another vs. NAZ Foundation and Others) and transgender right document confusion of notion inside the judiciary. The conflicting judgments of the courtroom on homosexuality seen at the side of its enlightened ruling on transgender rights probable displays a sluggish evolution of liberal notion within higher Indian judiciary.

The needs of the 21st century and the enlightened vision of the Indian Constitution, with its attention on justice, liberty, equality, and fraternity assuring the distinction of the person, mandate a creative citing of the regulation. The judges who reinstated Section 377 opted not to heed the call of justice and renew the guideline of the law with regards to the brand new question that was provided. Alternatively, the judges of the Delhi high court on Section 377 and those of the Supreme Court on transgender status took up the undertaking and rethought the regulation and cited them in response to the call of justice.

Reversal on Gay Rights in India

The police use the law in question to threaten and blackmail gays, lesbians and transgender humans. Violation of the law is punishable by means of a fine and imprisonment.

The British colonial authorities enacted Section 377 of the Indian Penal Code, primarily based on Victorian morality, to criminalize non-procreative intercourse. The Naz Foundation, a non-governmental enterprise operating inside the field of human immunodeficiency virus/obtained immunodeficiency syndrome (HIV/Aids) and sexual health, challenged the Constitutional validity of Section 377 as it violated the right to privacy, to dignity and fitness, to equality and non-discrimination and to freedom of expression. It additionally argued that the law avoided public fitness efforts at lowering the threat of transmission of HIV/Aids as the concern of prosecution averted people from discussing their sexuality and lifestyles fashion. The Delhi High Court on 2nd July 2009, in a landmark judgment, held Section 377 to be violative of Articles 21, 14 and 15, as it criminalized consensual sexual acts between adults in non-public.

The court restored Section 377 of the Indian Penal Code, a 19th-century law, barring “carnal intercourse against the order of nature”. The judgment has brought on incredible dismay among liberal and innovative human beings and among activists and advocacy groups, which use judicial intervention to redress grievances in opposition to minorities of all shades in India. It has also been criticized for prison and human rights views.

Ancient facts record the presence of homosexuality from time immemorial, even in our way of life. The universality of equal-sex expression coexists with versions in its meaning and exercise of the way of life. For the reason that 1970s, deserted pathologizing same-intercourse orientation, conduct, and LGBT lifestyle picks. The new understanding changed into primarily based on research that documented an excessive incidence of identical-intercourse emotions and conducts in males and females, it incidence across cultures and among almost all non-human primate species. Investigations the usage of psychological assessments couldn’t differentiate heterosexual from gay orientation. Studies additionally demonstrated that human beings with gay orientation did now not have any objective mental disorder or impairments in judgment, balance and vocational abilities.

Psychiatric, psychoanalytic, scientific and mental fitness professionals now remember homosexuality as an ordinary version of human sexuality. It cautioned that an awful lot of the distress faced by humans with identical-sex orientation is because of problems they face residing in our predominantly heterosexual global.

Gay-affirmative psychotherapies have been evolved, which help human beings deal with the awareness of being same-intercourse orientated and with social stigmatization. There is no proof for the effectiveness of sexual conversion remedies. Such treatments also increase moral questions. In truth, there is evidence that such attempts may also cause greater harm than properly, inclusive of inducing melancholy and sexual dysfunction. However, faith-primarily based corporations and counsellors pursue such tries at conversion using yardsticks, which do not meet clinical requirements. Clinicians must hold the dictum “first do no damage” in thoughts. Physicians ought to offer a medical provider with compassion and respect for human dignity for everybody no matter their sexual orientation.

The landmark judgment of the Delhi High court, which declared that Section 377 of the Indian Penal Code violates fundamental rights guaranteed by way of the Constitution, became consistent with worldwide, human rights and secular and criminal trends. But, the anti-gay attitudes of many religious and community leaders replicate the life of widespread prejudice in India. Prejudice towards different life is part of many cultures, incorporated into maximum religions, and is a supply of warfare in Indian society.

Homosexuality and India

Human sexuality is complex. The attractiveness of the distinction between choice, behaviour and identification acknowledges the multidimensional nature of sexuality. The reality that those dimensions won’t continually be congruent in people suggests the complexity of the problem. Remedy and psychiatry appoint terms like homosexuality, heterosexuality, bisexuality and trans-sexuality to encompass all related troubles, at the same time as cutting-edge social utilization argues for lesbian, homosexual, bisexual and transgender (LGBT), which focuses on identities.

The superiority of homosexuality is difficult to estimate for many reasons, such as the related stigma and social repression, the unrepresentative samples surveyed and the failure to distinguish choice, conduct and identity. The figures range in age businesses, areas and cultures.

The argument that homosexuality is a stable phenomenon is primarily based on the consistency of equal-intercourse sights, the failure of attempts to change and the shortage of achievement with treatments to regulate orientation. There is a growing realisation that homosexuality is not an unmarried phenomenon and that there can be multiple phenomena inside the construct of homosexuality. Anti-homosexual attitudes, once taken into consideration, the norms get modified over time in many social and institutional settings like in the west. But, heterosexism, which idealises heterosexuality, considers it the norm, denigrates and stigmatises all non-heterosexual forms of behaviour, identity, relationships and communities, is likewise not unusual.

Gay-affirmative psychotherapies have been developed, which help humans cope with the attention of being same-intercourse orientated and with social stigmatization. There is no proof for the effectiveness of sexual conversion treatment plans. Such remedies also boost moral questions. In fact, there may be proof that such tries might also reason more damage than desirable, consisting of inducing depression and sexual dysfunction. Physicians must provide a clinical carrier with compassion and respect for human dignity for all of us no matter their sexual orientation.

The landmark judgement of the Delhi High Court, which declared that Section 377 of the Indian Penal Code violates essential rights guaranteed by way of the Constitution, turned into in keeping with international, human rights and secular and legal developments. However, the anti-homosexual attitudes of many spiritual and community leaders reflect the life of tremendous prejudice in India. Prejudice in opposition to extraordinary existence is part of many cultures, included in maximum religions, and is a source of conflict in Indian society.

Conclusion

The issue is not whether the court ousted L, G and B from the LGBT umbrella. The issue is that whether L or G or B or T, Section 377 has no business in a country that wants to be considered a liberal democracy in the 21st century. The government has to come to terms with that or hope that the Supreme Court does it for them by taking up the curative petition soon. Until then it will keep tripping up at home and abroad over the elephant in the room.

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In this article, Rahul Kumar, pursuing Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata discusses the rules regarding the alteration of the share capital of a company

Introduction

Increase or decrease of authorized share capital of a company is known as alteration of share capital.

There two type of share capital of a company:- equity share capital and preference share capital. Power of a company to alter its share capital is defined and explained in section 61 of the Companies Act, 2013. It can be done by ordinary resolution of the company, thus it is not necessary to confirm the alteration of the share capital of the company from the tribunal.

The Companies Act 2013 allows the companies to alter and make some changes in its authorized share capital with certain specified procedures for alteration of share capital is specifically mentioned in the Companies Act, 2013.

Alteration in the share capital can be done only if it is so authorized by its Articles of Association to alter the capital clause of its Memorandum of Association.

Basic and Mandatory Rules Necessary to Follow

First step: It is important for a company to check and evaluate whether the company on the first face is authorized by the Articles of Association to increase the share capital if company’s Article of Association does not permit or authorize, then it is to be done with the objective of altering them.

Second step: The company has to take the confidence of other individuals. The board meeting has to be conducted for enabling the board to call for the extraordinary general meeting, it is mandatorily required to get approval from the shareholders for increasing the authorized share capital.

Third step: The company then calls for an extraordinary general meeting of the shareholders of the company by sending them a notice with clear agenda and proper explanatory statements, explanation, with a proper reasoning along with the resolutions to be passed to alter the Memorandum of Association and Articles of Association which are to be altered for the purpose of increasing the authorized share capital.

Fourth Step: Thereafter, resolutions for increasing the authorized share capital of the company and corresponding alterations in the Memorandum of Association and Articles of Association by resolution. After completing the whole procedural part, the company authorizes the board to file necessary forms and resolutions with ROC having jurisdiction.

The company, if thinks necessary and suitable for the growth, can increase its share capital by issuing new shares. A company may consolidate and divide all or part of its share capital into shares of a large amount. A company may also sub-divide its shares of lower denomination. It may cancel those shares which have not been taken by any person and reduce its share capital.

Thus, the right to alter share capital must be given in the article of association of the company.

Procedure for alteration of share capital:

• Authorized by article
• By resolution
• Notice to registrar

Notice To Registrar

Notice of alteration is required to be given from the hands of the company to the registrar within a period of 30 days, if the company fails to do there are provisions for a hefty penalty under the statute.

Alteration of Share Capital with Different ways of Journal Entries

Increase in share capital by making a fresh issue of shares, if a company wants to increase the share capital beyond the amount of share capital, it must increase its authorized capital by the number of new shares. The company can convert all or any of fully paid up shares into stock or reconvert stock into fully paid up shares of any denomination.

Provisions Relating to Alteration

The capital clause can be altered if the Article of Association contains the provision for such alteration otherwise, the first basic step is to alter Article of Association by passing a special resolution. The basic principle for alteration is that the alteration of share capital be bonafide & in the interest of the company.

Generally, ordinary resolution is enough to alter the capital clause, thus notice of alteration to be given to the ROC, when share capital automatically stands increased. Loan taken from central government also increases the capital of a company.

Condition for Alteration of Share Capital

The company should be limited by shares, the company limited by guarantee having a share capital, the Article of Association must permit the company for alteration of share capital.

Alteration of Share Capital can be done by

Alteration of share capital can be done by issuing new shares of the company in the market, by consolidating the shares, the company can do the alteration in its capital by the conversion of previous shares, the company can subdivide its share in the market, the company can cancel its unused shares from the market.

Share Capital may Automatically be Increased

When government by its order states that any debenture issued to any government by a company or any part under such circumstances, the debenture be converted into shares on the transfer of capital issued by the company.

Reduction of Share Capital

After confirmation by the tribunal on an application by the Company, limited by shares and guarantee, having a share capital and share capital of a company can be reduced by special resolution. The reduction of share capital is governed by Section 66 of the Companies Act, 2013. It is necessary to confirm it by the decision of the tribunal in writing.

For reduction of share capital, the company is required to conduct the board meeting, a notice for the general meeting is necessarily required to be given to every shareholder and concerned person

Every notice of a meeting shall specified by mentioning the place, date, day and the hour of the meeting and shall contain a statement of the business to be transacted at such meeting. A notice is required to be proper and elaborate, the material facts concerning each item of special business to be transacted at a general meeting, such as the nature of concern or interest, financial or otherwise to every director and the manager every other key managerial personnel and their relatives.

A notice which is given to the concerned person should itself be self-explanatory

After the notice, the Extraordinary General meeting is called and the concerned members vote in favor or against of the authorized share capital of the company. The votes of the members play a crucial role in taking appropriate decision. Thus, during the course of meeting the members decide the alteration in the memorandum of association. Thus, after considering all the facts in the welfare of company, the board members by utilizing their powers pass an ordinary resolution.

Reduction in Share Capital Not Allowed

Reduction in share capital is not allowed in the case where there are arrears in the repayment of interest and thereon. The creditor of a company has a right to object against the reduction in its share capital. For reduction in the share capital of the company, the registrar shall issue a certificate to the company for reduction.

Reason for Reduction in Share Capital of a Company

There are many reasons for the reduction of share capital of a company some are as follows.

• If there is a returning of surplus capital of a company.
• The company wants to smooth its capital structure by simplifying it.
• Sufficient reserve is also one of the reasons for the reduction in share capital.

Assets of the company also play a vital role in the variation of the share capital of the company.

Altering the Memorandum of Association and Articles of Association

Section 61 of the Companies Act, 2013 states about Power of limited company to alter its share capital, sub-clause further states that (1) A limited company having a share capital may, if so authorised by its articles, alter its memorandum in its general meeting to—   increase its authorised share capital by such amount as it thinks expedient. A company can increase its authorised share capital by altering the memorandum of association. Section 13 of the Companies Act deals with altering the memorandum of association and section 14 of the above-said act deals with altering the articles of association.

Section 13 of the Act states that as provided in Section 61, a company may, by a special resolution and after complying with the procedure specified in this section, alter the provisions of its memorandum.

If there is no provision to alter the provision of section 14 of the companies act, 2013, then the company is required to make suitable application to the concerned stock exchange, where the company is listed in a prescribed form.

Precedents in Regard to the Alteration of Share Capital of a Company

In Re North Cheshire Brewery Co., 1920 WN 149. Re Metropolitan Cementry Co., (1934) SC 65

Ratio

In this case law, powers are given to the members to alter its share capital only if it is authorized by its article of association

In [Needle Industries (India) Ltd. v. Needle Industries Newey (India) Holding Ltd. (1981) 1 Com Cases 743 (SC)].

Ratio

Powers to alteration must be exercised in the interest of the company and not for the welfare of some particular members

Conclusion

The company is bind to follow each and every part of the procedure as explained and mentioned in the statute failing which, the company shall be punishable with a hefty penalty. The procedural part mention in the statute for alteration of share capital also give security to its shareholder.

However, the increase in capital of the company, in the long run, benefit its investors in the form of increased return on equity through capital gains, an increase in dividend payouts or both.

Bank also usually prefer to give a loan to the company depending upon the authorized capital. Thus, authorized capital is also helpful for a company in growth. It is helpful in avoiding unnecessarily implications.

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Law firm or In-house?

The choice is a tough one to make. Most students know about law firms and the herd that follows them for internships and jobs. According to 2017 Livemint report, there are about 1.3 million registered companies in India. The number of law firms are definitely less than that, with only a handful firms employing a large number of lawyers like Cyril Amarchand Mangaldas (CAM), Shardul Amarchand Mangaldas (SAM), Khaitan & Co. AZB & Partners, etc. Even if each registered company employs even one lawyer, then imagine the scope!

There is a huge disparity between the starting salaries of an in-house counsel and an associate in a law firm. The starting salary of an in house counsel, as per GlassDoor, can range from 4.5 to 10 Lakhs per annum depending on the company, whereas the big law firms can pay from 13 to 15 Lakhs per annum, as per a thoroughly researched article on this blog.

I had joined, a law firm straight out of college in Kolkata and was working for INR 15,000 per month! Just imagine, there was Khaitan & Co. right next door to me which was paying its associates multiple times over! It was frustrating to say the least. There were other firms paying 20,000 to 35,000 per month. I was struggling with the work at hand like all first year associates, but much poorer. No one tells you this about non-litigation careers. People spoke of the financial struggles in litigation, but not of the law firms.

For me the move to the in-house role was more financially motivated than anything else. It took me years to realise that the work involved, remuneration, etc. are pretty comparative to law firms. You can watch this webinar about the journey of an in-house counsel, where Mr. Surup Ray Chaudhuri, Corporate Director – Legal at the Taj Group has spoken about his struggles to find a decent in-house job right after law school and what it took to keep at the job!

So what should be your first job? Where do you learn more? Where is the scope of consistent growth or diversity? Which one is the better option?

There is no straight answer to this. I like the remuneration of law firms but the work-life balance is off. However, it is a myth that in-house lawyers have that although their work is more diversified. So which way does one go?

Your first job is a monumental step in your career. Although it does not define your resume in the long run, but it definitely shapes you as a lawyer. I was a clueless law student when it came to knowing the difference between taking a job in a law firm and in-house. But now, as a professional I have much more clarity.

So how do you decide which your first job should be?

# Area of Interest

The first and foremost reason to pick between the two, should be based on your area of interest. If you are interested in mergers and acquisition, then a law firm with this focus area of work will be more suited for you. All the big law firms have an entire vertical dedicated to this. If you’re interested in say media and entertainment law, then an in-house role might be more suited.

So first figure out which area of law interests you the most.

The interest also varies in the nature of the work. An in-house counsel has to advise and work on a varied topics to different teams. This requires sufficient knowledge in a laws related to contracts law, technology law, intellectual property law, real estate laws, etc. They have to advise the management as well as the other departments like sales, marketing, accounts , etc. You can check out this comprehensive business law course, to enhance your knowledge base and learn the necessary laws and their practical application. To know more about the life of an in-house lawyer read this article. They have to make reports, presentations, maintain various databases to monitor the ongoing work, etc.

Whereas law firms, although deal with similar work profile, it is more focused on a field of law. So whether you’re interested in IP law or M&A law or commercial laws, you will be specialising in that area of law. To know more about how to work your way into a law firm, read this article. So you will be drafting contracts, dealing with clients, advising them, strategizing the best suited deal for your client, giving them the clear limitation of any transaction.

# Work Profile

The work of in a law firm and an in-house are similar in many ways. There are drafting of contracts, negotiation, due diligence, document review, liaison with third parties, dispute resolution, etc.

But then there are tasks specific to law firms and in-house counsel. You can read more about the specific work functions of a law firm and an-house counsel here. The pertinent thing to remember is that even the in-house counsels go to the law firms when necessary and not the other way around.

In  the initial years, it takes a while to adjust to the assigned work at law firms, as they are quite challenging. There are longer hours, volumes of work, lack of intermittent feedback,etc., which adds to the pressure. These are struggles faced by corporate lawyers in the initial years. How do you figure out if you’re cut out for this job? Plan your internships according to your interest and intern with the firm of your choice multiple times to see if you can take the grind. That is the easiest way.

The simplest way to describe the difference between the two is that an in-house counsel has to be jack of all trades and an associate is more of master of one or two. As an in -house counsel, I had to advise on day-to-day functions of the company along with troubleshooting the possible problems. Once a third party had sent notice to an international client of ours for copyright infringement. We not only had to quickly step up to protect us and our claim, but to pacify the client that they are safeguarded as well. We had to keep our clients abreast of every small development, till the dispute was resolved. The in-house counsel has to work not only on the legal issues, but maintain the business relations smoother as well.

# Scope of Growth

The fact remains that there is a clear trajectory of growth in both law firms and in-house jobs. The remuneration plays a key role in the decision between the two jobs. But the payment gap between the top firms and the small firms is huge.

The scope of learning is said to be more in a small firm as there are fewer team members compared to the big firm. It is an all hands on deck situation, which requires the optimal utilisation of even the associates. So if you’re a fresher looking to build a brand, it is your call to go to brand name firm or learn multitude of work in a smaller one, and let that be your calling card. Remember, if you know your craft, remuneration will soon follow. But if you spend your time unsuitably, then you risk the long game for short-term gain. So choose wisely.

For in-house lawyers there is the scope of changing industries from a telecom company to a start-up or a media company. They can also join law firms in future. Whereas, an M&A lawyer can move to different law firms with same practice or join a company for such specific transactional role.   

The point is that both the jobs have a great trajectory, although initially the in-house job might seem financially less lucrative, with the right skills and company, it does not go to a waste.

I started at a law firm, but I really learnt at the in-house jobs. Some of my friends are enjoying working at both law firms and in in-house roles. Don’t go into a company for the comfortable timings, for that is a myth. An in-house counsel is at call with multiple teams and not just the legal. They have to troubleshoot the issues coming from different directions. This job requires multitasking in the literal sense.

Similarly, law firms are not for the weak-hearted. You need to invest a lot of time and energy to learn the work and improve. There is no hand-holding guidance available. So you have to figure out things on your own and seek out help whenever necessary.

So if you’re a troubleshooter who can don multiple hats, in-house job is for you. If you’re focused, diligent, and self-motivated person who can handle whatever is thrown at them, give law firm a chance.

I started with much less experience and had to learn on the go. So if I can say with certainty it is this – work where you can learn the most and develop your skills. Money will surely follow soon enough. But learning your craft is a sure shot way towards that goal. You can learn business laws, contract drafting, media laws, company laws, M&A laws and more.

Be a jack of all trades or a master of one, but make sure you’re bloody good at it, whatever your choose.

The post Law Firm vs. In-House – What Should Your First Job Be? appeared first on iPleaders.

This article is written by Ramanuj Mukherjee, CEO, iPleaders.

When I was giving my day zero interviews, every law firm partner who took my interview asked me this question. There were variations, but in the end it was the same.

What is your favourite area of law?

What is the area of law on which we should ask you questions? What is it that you are most confident about?

What do you like about law? Anything that catches your fancy in particular?

Since then, I have helped many law students to prepare for interviews. There are two things I always say, even if you wake me up from my sleep and ask me just the night before your interview. Please prepare for any question that can possibly be asked about things that you have mentioned in your CV. Basically, if you have mentioned you have done certain work in an internship or at a job or an article you have written, you are highly likely to be asked a few questions about those things. What exactly will be asked cannot be predicted. Hence you need to think of predictable and unpredictable questions around all that you have mentioned in your CV, and prepare for the same.

The second is this question: What is your favourite area of law? On which they will ask you freewheeling questions.

Now the thing is that it is not enough to say any random area. Certain areas will quickly get you disqualified. One of my seniors once said “Family Law” when asked this question, and her interview lasted for only 5 minutes. The recruiters asked her – why are you appearing from a law firm job then? You should practice family law in a district court.

Don’t blow your interview like that. Imagine you are giving an interview for a job at Trilegal, AZB or Luthra & Luthra. Should you say my favourite area of law is IP laws or labour laws? I would be very apprehensive to do so. They have very small IP law or labour law teams, and usually they are not looking to hire into those teams. Your chances are much better if you say “Company Law” or “FDI” or “Project Finance” or “Capital Markets” or some such generic business law subject in which law firms have plenty of work.

In my interviews, I said my favourite subject is “Structured Finance.” It surprised and intrigued the interviewers. They asked me a lot of questions about structured finance, especially the partner who worked on finance deals most of the time. I explained to them about SPVs, and explained what brought on the global economic crisis in 2008. They were impressed. I got my job offer.

One of my students from GLC had a very interesting experience. Shardul Amarchand Mangaldas had shortlisted her and 17 others. When her turn for the interview came, she said her favourite area of law is FDI and investment law. Now that is not something recruiters expect to hear from students, because such topics are not properly taught in law schools. Hence, they asked her what they know about it.

Then she had a gala time. She told them everything she had read about in our investment law modules. She was one out of two people who were offered a job. And she said when she walked out of the interview she was quite sure that she was going to land it. She was even asked where and how she learnt all that!

You need to have this one area of law that genuinely interests you, and you got to build up your CV around it if you want a job at a law firm. The subject cannot be any random are of law, but something law firms where you want a job practice and consider valuable with a long term perspective on mind. You need to know enough that if a law firm partner starts talking to you about it, he or she will be definitely impressed by how much you know. That’s the easiest way to crack a law firm interview, which has been proven time and again.

In this area, you will not only know the obvious stuff taught in law school and mentioned in textbooks that everyone is expected to know, but also a lot more. You need to write articles in this area. You need to know the practical aspects of law that lawyers face when they deal with clients in real life. You find out about this topic as much as you can.

Here are 5 subjects I will strongly recommend. You can take any of these and succeed.

Tax Laws – very few lawyers or law students venture into this area, and it is always valuable to law firms. If you are good at it, getting PPO is easiest. Also there are tons of accounting firms and specialized tax law firms that will love to scoop you up. It is known to be difficult and complicated, but if you can create demonstrable expertise in it, your career is set. Here is a course on international tax and transfer pricing, here is another course on GST laws, and another one on corporate taxation.

M&A and investment law, including FDI –  This is the bread and butter for most big law firms. If you are good at this, it is hard for them to miss your talent or to say no to you. It is also one of the most crowded and competitive areas of practice in, after all M&A and private equity jobs are highly sought after. If you can show you understand the due diligence process, understand what are the documents that go into a transactions, and that you are aware of the regulations surrounding M&A, such as takeover code, FDI rules, companies act, you are done. Here is an M&A law course that can help you to reach a stage where even 1st or 2nd year associates in law firms will be glad to know as much as you do. It also covers investment law and banking law for good measure.

Commercial contracts – You could never know too much about contract drafting. It is the numero uno skill for young lawyers. How much bonus you get in your first year, and whether you get a promotion next year will probably depend on your ability to analyze a contract, find loopholes in it, write clauses that address risks you have identified and to help your senior associate in discovering issues that he didn’t discover. In the interview stage, if you can tell them about all the contracts you have already drafted, and have a hearty discussion about it, you are through. When I gave my day zero interview to Luthra & Luthra, I did exactly this. I told them about the first ever agreement I worked on. It was an agreement between a startup incubated at IIT Kharagpur. The incubation agreement, between the incubator and the startup, had a strange clause because of which the startup wasn’t getting investments. The clause said that if the startup raises follow on rounds, then if more shares are issued (an inevitability), then shares would be issued to the incubator free of cost to keep its 3% current shareholding intact! Now that’s a crazy term, and impossible to enforce because how can a company gives shares to a shareholder free of cost? Who is going to pay for those shares? The recruiting partner asked me if I had to write that contract, how will I rewrite the contract to ensure that IIT Kharagpur keeps getting new shares without having to pay. I was stumped. They left me for 5 minutes to think about it. When they came back, I suggested it could be shown as a royalty of some kind that accumulates and then shares are issued against the same. It wasn’t quite correct, there are many gaps in that answer. But they recognized that I was thinking in the right direction and gave me a job offer.

Basically, I got a chance to showcase my practical knowledge of Companies Act as well as experience in contract drafting. They found that to be unusual level of preparedness in a law student. Therefore I bagged the job! Here is a course on contract drafting that can help you reach a very high level of expertise, such that even experienced associates will be impressed by your knowledge and skills and ask you where you learnt so much.

General corporate laws – Taking from the previous example, make sure that you know a lot about general corporate laws if you are interviewing with a big law firm. You will find that knowledge very useful. You cannot say your area of expertise is general corporate laws – but it is something you got to know if you are going to work in a big law firm, no matter which team. This includes all the basic business laws – from business structuring to basics of taxation to technology laws. This is basic minimum knowledge threshold. What exactly do you need to know? I made an exhaustive list once – now it is the syllabus of this business law diploma course. Copy paste it from there if you like. You can also check out this detailed course on companies act and corporate governance if that catches your fancy.

Arbitration – Another area of law in which law firms are experiencing a boom, and they probably have more clients coming in through the door for arbitration than anything else. Law firms are all beefing up their dispute resolution teams, which do both arbitration and litigation. However, saying that your favourite area of law is civil litigation or something like that can be taken in a very wrong way in a big law firm interview. In a litigation firm or in an interview with dispute resolution partner, though, feel free to say so. Always aim for arbitration if you are trying to land a job at one of these law firms and dispute resolution is your area of expertise and preference. Here is an arbitration law course that can help you get expert level knowledge in just 3 months.

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This article is written by Martin William.

Lawyers are very important actors of the justice system. Without their help, people who suffered personal injury wouldn’t file a claim or, even if they did, they would lose the case. However, we are living in a world full of stereotypes and the most popular misconception around lawyers is that they are expensive.

In this case, attorneys don’t receive all the credit for their work and most citizens avoid dealing with litigation. When you think about the possibility of not being able to pay for your attorney’s services, you lose the hope of receiving a positive solution for your legal problem and thus you want to give up without even starting.

Expensive fees shouldn’t be an impediment for you. Those who cannot afford to pay for legal aid should know that there are lawyers who agree to a contingency fee. This payment method is useful especially for those who suffered injuries during a car or employment accident.

If you are in this situation, the first thing you should do after the initial medical check-up is to look for a specialized attorney who agrees to represent you based on a contingency fee. Most lawyers will work for this kind of fee in the area of personal injury claims.

The next step is to make sure that you find a dedicated professional who increases your chances of getting a favorable solution. Just as an example, we will mention that warriorsforjustice.com is a good place to start. Through this online resource you will find experienced lawyers who fight for their clients and are specialized in various fields. Also, you might get a good contingency agreement if you decide to work with any of them

Contingency means that you pay if and only the lawyer wins your case

In case you’ve never heard about contingency, we will mention that this notion defines an agreement between the person who needs legal aid and the attorney. According to contingency, the legal advisor receives a percentage of the overall settlement in case of winning. In conclusion, if the lawyer doesn’t win he or she isn’t getting any fee.

According to several people who benefit from contingency agreements, lawyers who practice this kind of fees are amazing assets to the justice system. But don’t think that they don’t have to play by the rules just because they might not get paid. They have their own set of rules to follow, but the bottom line is that it is in their best interest to get you the highest settlement as soon as possible.

The standard contingency fee may vary from case to case

If the case is a personal injury claim, most lawyers will charge around 33%, if the situation is settled without lawsuit and 40% in case the lawsuit is inevitable. For employment legal matters most lawyers will charge a 40% fee.

Tips for finding the best personal injury claim lawyer

It’s not easy to find the best lawyer when you want to file a personal injury claim. This is a delicate situation and an experienced attorney who works on contingency fee basis will go for the maximum settlement. Also, the trial won’t last long and you won’t have to appear in Court every time. Experts advise us to keep the following things in mind when we are looking for a good lawyer.

• A legal advisor with experience in the field of personal injury claims will know what steps to follow and what to expect. Also, he/she will know which is the highest settlement possible and will always go for the maximum amount. When you go to the initial meeting, ask the firm representative who will take your case and if your future legal advisor has enough experience in your area of interest. Don’t forget to check for the lawyer’s credentials and success rate.
• Make sure that it doesn’t take a lot of time until your case starts and ask about the number of times you have to appear in Court and what you will have to do. Usually, the lawyer does everything for you, from filling the documentation to representing you in front of the judge.
• Read all the documentation before signing anything and ask if you didn’t understand something.
• Last, but not least, remember that professional lawyers won’t charge you for consultations.

After these things are settled, check to see if the company asks for other fees and what documents you should bring for consultation. In addition, communicate with your attorney as much as possible, before and during the procedures.

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In this article, Saloni Sharma discusses Implied Conditions and Warranties under the Sale of Goods Act.

Implied Conditions and Warranties under the Sale of Goods Act

The Sale of Goods Act came into effect on 1st July 1930 and deals with the contracts or agreements related to sale/purchase of goods. The contract of sale of goods, whereby a seller transfers or agrees to transfer the property in the goods to the buyer for a specific consideration, i.e. price, has following main essentials for its validity:

1. Two consenting parties
   • Buyer – A person who buys or agrees to buy goods.
   • Seller – A person who sells or agrees to sell goods.
2. Goods- Form the subject-matter for the contract of sale.
3. Transfer of the property- may or may not involve physical delivery of the goods.
4. Price- consideration for the goods.
5. All the essentials of a valid contract (1)

Understanding the terms

Goods

Section 2(7) of the Sale of Goods Act, 1930 defines Goods as any kind of moveable property (which is not an actionable claim or money) or land (including stock and shares, growing crops, grass, and things that are attached to or form a part of the land) which is agreed to be sold, under the contract of sale.

Goods form the subject-matter for the contract of sale against which the buyer pays a consideration (price for the good) at the time of completion of the contract. Goods can be classified into 3 types on the basis of their quality (2):

Existing goods- The goods that are agreed to be the subject matter of the contract by the parties and are under the possession of the seller at the time of formation of the contract are referred to as existing goods. These can further be divided into two categories:

• Ascertained or Specific Goods- The goods that are specifically a part of, are identified and agreed upon at the time when a contract of sale is made, are ascertained goods (3).

For example, when a customer selects a particular painting/artwork to buy from the seller at the time of formation of the contract, the painting/artwork is an ‘ascertained good’ since the customer contracted to purchase that specific painting/artwork only.

• Unascertained Goods- The goods that are not explicitly identified among similar goods at the time of formation of the contract are unascertained goods.

For example, A contracts to buy one sack of rice from B. Here, the subject-matter of the contract, i.e. rice is not identified specifically by the buyer at the time of formation of contract but is under the possession of the seller.

1. Future goods- The goods that are not present with the seller or are not under his possession at the time of formation of the contact but promises to produce, manufacture or acquire the same in order to fulfil the contract (4). When the seller has produced/manufactured/ acquired the goods, as agreed upon during the formation of the contract and are suitable to be transferred to the buyer, the goods are said to be in a deliverable state (5), and the buyer is bound to take delivery of the goods, so produced. For example, A contracts to buy a car from B after it is manufactured by B.
2. Contingent goods- Section 31 of the Indian Contract Act 1872 defines contingent contract as, ‘a contract to do or not to do something, if some event collateral to such contract, does or does not happen’ which means such contracts which are dependent on some other event or contract. A contingent good in a similar sense means, a good, the acquisition of which by the seller depends upon a contingency which may or may not happen (6). For example, A agrees to deliver a T.V. set to B when he receives the same from the vendor upon fulfilment of his contract with the vendor (between the seller and the vendor).

The central concept of condition and warranty with respect to the subject matter of the contract of sale, i.e. goods is explained in section 12 of the Sale of Goods Act, 1930 as a ‘stipulation’ in the contract of sale which may be a condition or warranty.

Deliverable State

Section 20 and 21 of the Sale of Goods Act 1930 elaborate on the concept of ‘Specific goods in a deliverable state’ and ‘Specific goods to be put into a deliverable state’ respectively.

‘Deliverable state’ refers to the condition of the goods such that the buyer under the contract is bound to accept the goods delivered to him by the seller according to the contract. ‘Where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment of the price or the time of delivery of the goods, or both, is postponed’ (7) whereas for the ascertained goods that are not in their deliverable state at the time of formation of the contract, and the seller needs to do something in order to put the good in a deliverable state, the possession of the good in deliverable state passes to the buyer as soon as he receives the notice of the same.

Condition

‘A condition is a stipulation essential to the main purpose of the contract, the breach of which gives rise to a right to treat the contract as repudiated’ (8).

A condition is referred to as, an essential element attached to the subject matter of an agreement which is mentioned by the buyer to the seller and is either expressed or implied while entering into the contract. The buyer can refuse to accept the goods delivered by the seller, in case of non-compliance with the condition mentioned by the seller in the contract. The condition may be expres or implied.

If while entering into a contract, the buyer mentions (in words or writing) that the goods are to be delivered to him before a given date, the date is taken as a condition to the contract since the buyer expressed it. Whereas, if a buyer contracts to buy a red-coloured saree for her ‘wedding’ which is to be held on a date mentioned to the seller, then the time is the implied condition for the contract. Even if the buyer doesn’t mention the date of delivery (but has mentioned the date of the wedding or occasion), it is implied on the part of the seller that the garment is to be delivered before the mentioned date of the wedding. In this case, the seller is bound to deliver the garment before the date of the wedding as the delivery of the garment after the said date of the wedding is of no use to the buyer and the buyer can refuse to accept the same since the condition to the contract is not fulfilled.

Warranty

‘A warranty is a stipulation collateral to the main purpose of the contract, the breach of which gives rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated’9.

A warranty is referred to as extra information given with respect to the desired good or its condition. The warranty is of secondary importance to the contract for its fulfilment. Non-compliance of the seller to the warranty of the contract does not render the contract repudiated and hence, the buyer cannot refuse to buy the good but can only claim compensation from the buyer.

Implied Conditions and Warranties under the Sale of Goods Act

Section 14-17 of the Sale of Goods Act, 1930 deal with the implied conditions and warranties attached to the subject matter for the sale of a good which may or may not be mentioned in the contract.

Implied Condition

Condition as to Title [Section 14(a)]

Section 14(a) of the Sale of Goods Act 1930 explains the implied condition as to title as ‘in the case of a sale, he has a right to sell the goods and that, in the case of an agreement to sell, he will have a right to sell the goods at the time when the property is to pass’.

This means that the seller has the right to sell a good only if he is the true owner and holds the title of the goods or is an agent of the title holder. When a good is sold the implied condition for the good is its title, i.e. the ownership of the good. If the seller does not own the title of the said good himself and sells it to the buyer, it is a breach of condition. In such a situation the buyer can return the goods to the seller and claim his money back or refuse to accept the good before delivery or whenever he learns about the false title of the seller.

CASE LAW: Rowland v Divall, 192210 – The plaintiff had purchased a car from the defendant and was compelled to return it to the true owner after having used it for a while. The plaintiff then sued the defendant for the purchase money, since the defendant didn’t receive the consideration as per the condition of the title of ownership.

Sale by Description (Section 15)

Section 15 of the Sale of Goods Act, 1930 explains that when a buyer intends to buy goods by description, the goods must correspond with the description given by the buyer at the time of formation of the contract, failure in which the buyer can refuse to accept the goods.

Sale by Sample (Section 17)

When the goods are to be supplied on the basis of a sample provided to the seller by the buyer while the formation of a contract the following conditions are implied:

• Bulk supplied should correspond with the sample in quality
• Buyer shall have a reasonable opportunity to compare the goods with the sample
• The good shall be free from any apparent defect on reasonable examination by the buyer.

Sale by sample as well as Description (Section 15)

When the sale of goods is by a sample as well as a description the bulk of the goods should correspond with both, i.e. description and sample provided to the seller in the contract and not only sample or description.

Condition as to Quality or Fitness (Section 16)

The doctrine of Caveat Emptor is applicable in the case of sale/purchase of goods, which means ‘Buyer Beware’. The maxim means that the buyer must take care of the quality and fitness of the goods he intends to buy and cannot blame the seller for his wrong choice. However, section 16 of the Sale of Goods Act 1930 provides a few conditions which are considered as an implied condition in terms of quality and fitness of the good:

• When the buyer specifies the purpose for the purchase of the good to the seller, he relied on the sound judgment and expertise of the seller for the purchase there is an implied condition that the goods shall comply with the description of the purpose of purchase.
• When the goods are bought on a description from a person who sells goods of that description (even if he doesn’t manufacture the good), there is an implied condition that the goods shall correspond with the description. However, in case of an easily observable defect that is missed by the buyer while examining the good is not considered as an implied condition.

Implied Warranty

Enjoy Possession of the Goods [Section 14(b)]

Section 14(b) of the Act mentions ‘an implied warranty that the buyer shall have and enjoy quiet possession of the goods’ which means a buyer is entitled to the quiet possession of the goods purchased as an implied warranty which means the buyer after receiving the title of ownership from the true owner should not be disturbed either by the seller or any other person claiming superior title of the goods. In such a case, the buyer is entitled to claim compensation and damages from the seller as a breach of implied warranty.

Goods are free from any charge or encumbrance in favour of any third party [Section 14(c)]

Any charge or encumbrance pending in favour of the third party which was not declared to the buyer while entering into a contract shall be considered as a breach of warranty, and the buyer is be entitled to compensation and claim damages from the seller for the same.

Conclusion

The provision of Implied conditions and warranties are provided in the Sale of Goods Act in order to protect the buyers in case of any fraud by the seller. However, it is seller’s duty in the first place to look for the obvious defects and enquire about the quality of the product before entering into a contract of sale of goods since a seller cannot be held guilty for a customer’s wrong choice.

In order to ensure purchase of an appropriate good by the seller, it is suggested that the buyer conveys the purpose and gives a reasonable description of the goods so desired.

Endnotes

1.  Section 10 of Indian Contract Act, 1872
2.  Section 2(12) of The Sale of Goods Act, 1930
3.  Section 2(14) of The Sale of Goods Act, 1930
4.  Section 2(6) of The Sale of Goods Act, 1930
5.  Section 2(3) of The Sale of Goods Act, 1930
6.  Section 6(2) of The Sale of Goods Act, 1930
7.  Section 20 of The Sale of Goods Act, 1930
8.  Section 12(2) of The Sale of Goods Act, 1930
9.  Section 12(3) of The Sale of Goods Act, 1930
10.  (1923) 2KB, 500

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This article is written by Neel Vasant. This article does an Analysis of Antigone by Sophocles from the perspective of Natural and Positive School of Law.

Abstract

“Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress”.[1]

-Martin Luther King Jr.

The term ‘Jurisprudence’ means the study of law or the science of law.[2] There are various branches or school in the field of jurisprudence such as Natural Law School, Realist School of Law, Positive School of law and others. All the theories have different meaning as to what is right and wrong. Literature is identified by scholars as being universal in its representation of ideas and arguments, this article uses Sophocles’ Antigone to discuss the conflicting claims of natural and positive law as determinants of justice. This play gives rise to many questions as to is an act which is legally wrong but morally right can be made punishable? Thus, it is an attempt to answer several such questions and to critically analyse the Natural and Positive Law Theory, with special emphasis on Saint Thomas Acquinas (Natural Law School) and John Austin (Positive Law School).

Keywords: Jurisprudence, Antigone, Natural Law Theory, Positive Law Theory.

Antigone and Natural Law

“Every person has free choice. Free to obey or disobey the Natural Laws. Your choice determines the consequences”[3]

Natural Law is that theory of law which means that the laws are derived from nature and acts as a binding force upon the human society.[4] In the play Antigone after the death of King Odeipus, a civil war was broke which in the end resulted in death of ‘Polinices’. Antigone – The Protagonist of the play went against the royal order of Creon and gave a royal and an honourable burial to her brother. In this story the law of the land was that no one shall give royal burial to Polinices, but Antigone decided to go against this order, as she believed in the theory of Natural Law – The theory of Saint Thomas Aquinas. [5]

Thus, Antigone despite breaking the law of land, felt that her act was justified as she believed that there is something over and above the law of land which are moral. In this story after the death of Odeipus, his successor King Creon believed in the theory of man made laws. Antigone had a firm belief that Gods have authorised people to give a respectful burial. And thus, following God’s wish/command has a more priority than following the man-made rules. he values portrayed in works of literature such as Sophocles’ Antigone reflect on the true nature of man and implore us to adopt certain ethical principles, which will make us socially responsible, lawyers.

According to St. Thomas Aquinas it is also to be noted that the primary function of law is to secure peace and to make sure that proper justice is given to the victim.[6] However, it is also worthy to note that one of the concept of Criminology is that the offender should be punished to an extent which would deter him from committing any crime in future. Morality although not legally enforceable is one of the main sources of law, and a moral crime being made worse when sanctioned by the law as in the case of punishment given to Antigone for giving a respectful burial to his dear brother.[7] When Antigone was arrested for breaching the man-made law, following was her response: –

Antigone: I disobeyed because the law was not, The Law of Zeus nor the law ordained, By Justice, Justice dwelling deep, Among the gods of the dead. What they decree, Is immemorial and binding for us all.[8]

Antigone and Positive Law

“Have I offended the Gods? Do the gods have no regard for what I did?[9]

This was the statement made by Antigone just before she was subjected to the cruel punishment by King Creon. This shows to the readers that she acknowledges that her suffering is the proof of her mistake in obeying her duties, however, she does not defer from her seemingly adamant position that Creon has erred completely in his path of actions. John Austin was the major proponent of the theory of positivism. According to him law is in form or order issued by a superior to an inferior and not a wish, desire or request. There is no option or choice to obey it. And the person has a legal duty to follow the rules laid down and in case of disobedience, punishment is given. Thus, according to this school, the punishment attributed to Antigone for not following the order was valid.

Sophocles’ Antigone as it touches upon the issue of the legitimacy of power of an autocratic ruler Creon, explores how a possible conflict between power and justice has the capacity to create chaos in society.[10] The main argument of people supporting the natural law over the positive law is that the former is universal in a sense and thus there exist a common understanding on any given issue.

One can find the personification of positivism in the attitude and behaviour of King Creon who boycotts any moral principle while punishing Antigone. Creon believed that if he would be liberal in his approach than the city of Thebes would fail to function properly. And thus as a result he considers a positive law approach as his political ideology. The ideology of Creon was quite similar to the views of John Austin where he is of the opinion that it is necessary to forego human emotions and to define legal duties in a strict manner.

According to Austin law is a command of a sovereign which is backed by a sanction.[11] According to Austin the command or the order given by the sovereign is supreme and non-compliance with it would attract heavy punishments. Such commands issued by the sovereign gives rise to a legal duty. There was no place for morality in Austinian Theory.

Present Day Example

In the current setup there is a lot of buzz around regarding scrapping of Section 377 of the Indian Penal Code. Section 377 deals with an unnatural offence which criminalises homosexuality.[12] This debate is ongoing since a very long time. It was in the year 2009 that the Delhi High Court declared Section 377 as unconstitutional, however, the apex court overruled this judgement way back in 2013.[13] It was in the initial months of 2018 that the Supreme Court decided to review the earlier judgement.

There are mainly two arguments on this on-going debate. According to the positive law section 377 should be an offence because it is the law of the state, which is backed by a sanction. Positive Theory of Law states that the man-made laws are to be considered as sacrosanct[14]. On the other hand, the Natural Law believes that man made laws can never stand against the natural laws. Everyone is born in this world with a special and a unique trait. Just because a particular person attracted to a person from the same gender doesn’t or shouldn’t fetch him a punishment.

Conclusion

“The narrative in legal theory, like all narrative, brings us face-to-face with our moral selves, our moral options and our capacity for moral action”[15]

The play Antigone is just not limited to being a tragedy but it still keeps alive the debate of law and morality. Both the theories i.e. Natural and Positive Law are completely opposite but both help us as determinants of justice. After analysing the play, we can conclude that law is a very important for justice delivery in the society, however with changing times there should also be change in the laws to meet the claims made unto us by the Natural Laws which are universal in nature.

[1] “Quote by Martin Luther King Jr..”, http://www.keepinspiring.me/martin-luther-king-jr-quotes/, Accessed on 23 July 2018.

[2] “Meaning of Jurisprudence”, https://dictionary.cambridge.org/dictionary/english/jurisprudence, Accessed on 23 July 2018.

[3] “Natural Law Quotes”, https://www.brainyquote.com/topics/natural_laws. Accessed on 25 July 2018

[4] “Natural Law Definition”, https://www.merriam-webster.com/dictionary/natural%20law. Accessed on 25 July 2018.

[5] “The Basics of Philosophy”, https://www.philosophybasics.com/philosophers_aquinas.html, Accessed on 25 July 2018.

[6] “St. Thomas: Philosopy”, https://www.franciscanmedia.org/saint-thomas-aquinas/, Accessed on 25 July, 2018.

[7] Jill Frank, The Antigone’s Law, Law, Culture.

[8] Seamus Heaney, The Burial at Thebes — Sophocles’ Antigone, 20—21 (1st Ed. 2004).

[9] “Antigone: A Classical Greek Tragedy”, https://mthoyibi.files.wordpress.com/2011/05/antigone_2.pdf, Accessed on 23 July 2018.

[10] Transgression of Law and Justice: A Jurisprudential Analysis of Sophocles’ Antigone, 3 KIIT Student L. Rev. 80 (2016).

[11] “John Austin: Philosophy”, https://plato.stanford.edu/entries/austin-john/, Accessed on 25 July 2018

[12] The Indian Penal Code, Section 377

[13] “Section 377: The Legal Battle”, https://indianexpress.com/article/what-is/what-is-section-377-homosexuality-lgbtq-supreme-court-india-5253460/, Accessed on 25 July 2018.

[14] Bruce D. Fisher, Positive Law as an Ethic: Illustrations of the Ascent of Positive Law to Ethical Status.

[15] James V. Schall, Natural Law and the Law of Nations: Some Theoretical Considerations, 15 Fordham International Law Journal 997, 997 (1991).

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This article is written by Mohona Thakur from Team iPleaders.

Here’s a little something I’d like all of you to know. For most part of my law school years, I interned with the in-house legal teams of companies. 5 out of 8 internships that I did in the half a decade I spent in law school were in house, in the hope that someone would notice my work and willingness to work in house and hand me a job offer!

What initially started as an experiment to figure out what do lawyers in companies do, over the internships culminated into what I wanted to do after law school, and for good reason. Every internship taught me something different, and when I look back I realise I acquired a new skill-set in every internship that in-house lawyers are expected to possess.

For those of you curious or interested to find out what is the kind of work that you are required to do as an in house counsel, or apprehensive about what work would be handed to an intern in a legal company, you would want to proceed and read this article. I’m sure my experiences won’t disappoint you.

Here are the five skills I acquired at the five internships I did with the in-house legal teams of companies:

• Contract Drafting and Reviewing

To be absolutely honest with you, while I was interning with the legal team at L&T, I was completely clueless about what was expected of me to do. Apart from the quick research that was given to me, I used to spend maximum amount of time in a day reviewing and drafting contracts. These ranged all the way from software licensing agreements, to employment agreements to subscription enterprise agreements to master service agreements.

Barely having studied Law of Contracts I in law school, I was given the task of reviewing 300 page contracts to figure out if the boilerplate clauses were a potential hazard to the business. Back then, I didn’t even know what boilerplate clauses meant, let alone figure out how they would be a conflict with the business. Law schools didn’t teach us these kind of things. What they taught us were Balfour v. Balfour, which was almost never required at the time of contract drafting or reviewing!

Till date law schools have professors with almost negligible practical knowledge teaching us the law of contracts. While they may do a pretty good job at the clearing the basic concepts and making us understand the most important case laws from 1919, what they cannot do is teach us how to draft a contract! Which is why we now see online courses on contract drafting that teach us exactly how to do draft, review a contract through live webinars, industry experts, guidance and feedback sessions!

By the end of this internship, I knew how to review contracts and understand the good and the bad of how a contract could possibly affect a business.

• Research

When I look back, a month at HT Media is probably one of those defining months of my career as a lawyer. I was quite lucky to have an extremely demanding reporting manager, who was very specific with the research work he gave me. As a second year student, he didn’t expect much of me. In fact, you’d face this everywhere you go – no one takes the first-second year law students at internships seriously.

He began with what he called an easy topic and asked me to take as much time as I needed to come up with a thoroughly researched article, with relevant case laws. Wondering what the research was on? I was asked to figure out if the company could use the national flag of India in an advertisement to be printed in Malaysia. Eventually, the topics became difficult. In the one month I spent there, I had researched on a variety of things ranging from the jurisdiction to file cases under the negotiable instruments act, to the intersection between copyright laws and competition laws, to defamation laws.

While researching came naturally to me, this internship taught me to research on very specific needs of the company. I learnt how to ask questions when stuck, and most importantly to ask the right questions. As in-house counsels, we would be expected to be jack of all trades, but we won’t be expected to know all the laws under the roof. However, we would be expected to figure them out and deliver at the times of need.

If you’re eyeing an in house role, you better be prepared to research on anything under the sun. It would be handy if you had prior knowledge of business or commercial laws. The business law courses available online are a good option to go with if your schedule doesn’t permit you enough time to do a full-time course!

• You Work For The Team First, Then For Yourself

I believe HUL was the most serene experience. I was here for two months and had a variety of work to do, but what I genuinely took back from this experience was that team work does wonders.

Amongst the many projects that I was working on from Day 0, creating a due-diligence report for all factories, live as well as defunct, in order to ensure that the properties are marketable was one of my major tasks. This involved liaising with various branch teams across the country and ensuring that all agreements were available to be vetted, then vetted, and then all plausible future actions taken to ensure that the properties were marketable!

A four member team, inclusive of me, were working on this project for a month to ensure that not only did we complete the project, but ensure that we do it to the best of our ability. Most of us stayed back at work post work hours to review property agreements, coordinate with branch offices, government offices for mutation documents and collate all documents of probably a hundred factories.

Had it not been for team work, we wouldn’t have been able to complete the work, let alone complete it on time. When you put the work, the team before you, you end up doing a lot more than you could expect to. And companies look at this as an enviable quality. Would you put the team before yourself?

• Domain & Industry Knowledge

Whether it was HT Media or HUL, by the end of the internship, I could name all the brands under their umbrella, what category they belonged to and what could possibly be the laws that governed those categories. This is expected of you.

In fact, this was one of the questions asked to me during an interview with a reputed production house a couple of years ago. They wanted to assess my knowledge of the company and their brands. The follow up question to such questions, in undoubtedly and generally quite simple: what laws do you think govern this industry?

Therefore, if you’re ever sitting for an interview for an in-house role, go thoroughly prepared. Don’t just know the brands, know the history of the company, whether it’s public or private, the latest news pertaining to that company or the industry in general and of course, the latest development in any law that possibly governs or affects that industry.

Trust me, if you know the industry and possibly show the knowledge in the interview right, you’ve probably won half the battle. The only question is how do you gain industry knowledge as an outsider. Will news articles suffice? No. You need to be a step ahead and know how the industry functions. For instance, a media house presently in the process of transitioning business focus from cable networks to digital platforms would expect you to know of intermediary liabilities, software agreements, privacy policies and terms and conditions put up on such websites.

Yes, it sounds like a mammoth of a task, however, if you google for help, you’d find courses on media and entertainment laws, cyber law courses that can help you work your way through it.

• Understanding The Needs of The Company

If you were asked to analyse the Prevention of Sexual Harassment Act and break it down to your company’s employees, would you be able to do it?

I am presuming a lot of you would say yes. However, what’s important to realise here is that, as lawyers we tend to use complicated terms, explain the law, and expect the layman sitting opposite the table to understand the jargon. This is exactly what companies do not need.

They need lawyers who could break down the laws to a checklist of do’s and don’ts for the management as well as employees.

Think about it, what happens when marketing needs a certain ad to be reviewed? Let’s say you find certain portions of the ad prone to call for a case of misleading advertisement. Do you tell them what the law is? Or do you explain to them what can be done? Or how could they tweak the ad to not be misleading?

What about in the case of a negotiation? Do you let go off a profitable deal because your best alternative solution has been thrown out of the door? Or do you think of what is in the best interests of the company and return to the table later?

As part of the in-house legal team, it is essential to understand that the business you are providing legal advice to, basically your internal clients, are what brings this very company the revenues it requires not only to sustain, but also to be profitable. Your job isn’t to tell them what the law says, it’s to support the business, legally in order for them to perform.

Is this all that companies look at while hiring for their in house team?

No. But these are qualities that they look for in every candidate.

If I were to add a number 6 here, I would have said that in-house counsels need to understand how litigation works. But that is something I would say from the perspective of an outside counsel who has had first hand experience with a number of in-house lawyers with zero knowledge of litigation, or how it works. And clearly, it may not be a mandate for these companies whose lawyers I may have interacted with. However, I do believe it would be an added advantage to anyone applying for an in-house role. More on that next time.

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Recently a friend dealing in cryptocurrency, was trying to get me started on smart contracts and cryptocurrencies in India. His argument to me was to get on the ground floor of a niche field. Soon enough I landed on the hotly debated topic of cyber laws in India – cryptocurrency regulations.

The Reserve Bank of India (RBI) circular banning banks from extending banking solutions to cryptocurrency entities came into effect from July 5, 2018. The Supreme Court of India has denied an interim stay on the RBI circular. This has led to most cryptocurrency exchanges operating in India to launch crypto-to-crypto trading services.

In my research, I came across a TEDx Talk of the cyber law expert, Advocate Pavan Duggal. Here he talks about the future of cyberspace and cyber laws. He talks about the challenges of jurisdiction, data protection, privacy issues, etc. He emphasises on the need for an international convention or treaty on cyber laws in today’s times.

According to cyber law expert Adv. Puneet Bhasin, the role of cyber law is extensive. She states in an interview, “…A cyber lawyer is a techno-legal lawyer who is well-versed with technical aspects of computers, computer networks, communication devices and has complete legal knowledge including the special laws and rules applicable in techno-legal matters. Most evidence in criminal cases is obtained from cell phones or computers, and a cyber lawyer is the only one who can help in proper appreciation of such evidence or to find loopholes to make such evidence inadmissible.”

She emphasises that with the advent of technology, laws related to  e-commerce, e-contracts and digital signatures, intellectual property rights, cyber security, etc. have all become relevant for a cyber lawyer.

So as a lawyer, I started thinking about this upcoming field looking for outstanding experts. What skills do cyber lawyers need? What challenges will they need to overcome? What are the areas of laws they need to be well-versed with?

After reading more about cyber laws and the opinions of the experts, I realise an outstanding cyber lawyer needs the following skills to find their niche:

# Knowledge of law

The cyber laws exist between few nations through convention or bilateral treaties or each country has their own set of laws governing the same. The Convention on Cybercrime, also known as the ‘Budapest Convention on Cybercrime’ or the Budapest Convention, is the first international treaty seeking to address Internet and computer crime by harmonizing national laws, improving investigative techniques, and increasing cooperation among nations. As of April 2018, 57 states have ratified the convention, while a further four states had signed the convention but not ratified it. India is not a party to the convention yet.

But India has its own laws and policies like the Information Technology Act, Indian Penal Code, Indian Evidence Act, National Cyber Security Policy, 2013, etc. to ensure a secure and resilient cyberspace for citizens, businesses and the government.

A cyber lawyer needs to have astute knowledge of the applicable laws in order to apply them as necessary. For instance in case of assisting the law agencies, a cyber lawyer has to keep in mind the jurisdiction, the handling of evidence, collection of data from the computer and mobile devices, etc. The entire case can be made admissible or inadmissible on these issues by any competent cyber lawyer. Therefore, a cyber lawyer must be well-adept in the relevant laws.

# Knowledge of technology

Any lawyer must understand the subject matter of the dispute to be effective at the job. A  cyber lawyer needs to know technology well enough to be able to anticipate the potential risks and safeguard against them. They need to have working knowledge of the latest technology like block-chain, cryptocurrency, cyber security, etc. They also need to be familiar with the devices, their operating systems, coding, etc.

An outstanding cyber lawyer needs to understand the dealings and activities in the internet as well as say, the dark net for instance. The dark web is basically to avoid monitoring by state and non-state players. There are separate browser like the Tor browser which allows anonymity. The Tor software protects you by bouncing your communications around a distributed network of relays run by volunteers all around the world. It is used for both legitimate and criminal purposes.

This poses a unique challenge for a cyber expert who might need to prosecute an anonymous criminal. The question also arises if the details of such criminal is obtained by ethical hacking or other means, does it violate the privacy rights of the criminal? Where will the criminal be prosecuted jurisdiction wise? In case the crime is committed outside India, the laws of which country will prevail?

Therefore, a cyber lawyer must be aware of the technological as well as the legal challenges in such situation.

# Contract drafting

Cyber expert Pavan Duggal mentioned about cyberspace and said it has four essential aspects to it: Smart, Mobile, Analytics and Cloud. He mentioned that in India about 67% people are connected to the internet through their phones. It brings forth the regulatory challenges pertaining to mobile phones.

Then there is cloud computing. The makers of cloud computing claim that is secure. But what if there is a breach in stored data or if some data is made inaccessible?  The cloud computing contracts are in fine print and as we know users generally don’t read the fine print carefully. So what happens in case there’s breach, is the intermediary liable? Read your cloud contract and you’ll know that usually intermediaries have mitigated any responsibility in the contract by some clause or the other. You can learn more about technology contract and cyber law courses to gain some clarity on the concept.

There are smart contracts which are a computer protocol intended to digitally facilitate, verify, or enforce the negotiation or performance of a contract. Smart contracts allow the performance of credible, trackable, irreversible  transactions without third parties involvement.

So an outstanding cyber lawyer not only needs to know about regular contract drafting, they must be experts in the various technology contracts like: Software License and Assignment Agreements, IT Services Agreements, Cloud Services Agreement, Content Licensing Agreements, terms and conditions for platforms, e-commerce vendor agreements etc. They need to be able to understand the client’s requirements and be able to get them the best deal in negotiation.

# Critical Thinking

All lawyers need to develop critical thinking in their field of work. A cyber lawyer needs to think beyond as they are dealing with ever-evolving technologies. The laws can barely keep up with the changing technology and the challenges that come with them. By the time laws catch up with the technology, newer issues may have cropped up.

So an outstanding lawyer must keep themselves updated not only about the laws, but technology as well. They need to practice the art of questioning outside the norms of the present scenarios. For instance, in the era of internet of things when there are smart electronics like refrigerators, televisions, phones, computers, etc., there are newer challenges.

Cyber expert Pavan Duggal posed his the audience with this question: Who is liable if your smart refrigerator places an order to the grocery store and your account is being charged for it? Is it the manufacturer or the intermediary facilitating the technology or the buyer? Such intricate questions need to be pondered upon by the cyber law experts because they can only anticipate the potential risks and manage them.

By 2020, there will be around 20 billion devices connected to the internet. Imagine the possible cyber threats and vulnerabilities! It will be difficult for any one nation to contain the threats as the internet makes it possible for people to be active from anywhere in the globe. The laws are developing in mobile laws, drone technology, artificial intelligence and more. These are the things developing now and the laws are still unable to contain them completely. Imagine the technology of the future! Therefore there needs to be a set of global laws governing the cyberspace, where at least the common principles of the various cyber laws can be ratified.

There are lawyers doing cyber laws course, or gaining practical experience in order to become outstanding cyber lawyers. I urge you to keep updating your technology and legal knowledge while developing your critical thinking skills.

Good luck!

The post Skills That Will Make You Stand Out As A Cyber Lawyer appeared first on iPleaders.

I always dreamt of being a part of the big law firms like Shardul Amarchand Mangaldas (SAM), Cyril Amarchand Mangaldas (CAM), Khaitan & Co. (KCO), Luthra and,Luthra, AZB, Trilegal, LakshmiKumaran and Sridharan (L&S).

Most law students and lawyers dream of working at the big law firms one day. To be part of the legacy is almost a rite of passage. It helps you know that you are headed in the right direction. But they are selective in their membership.

I was clueless as to how to go about it. I sent emails with my CV and cover letter, but never had any luck. It left me questioning what could I have done more or properly to bag that internship or job in the big law firms.

I had decent grades, I’d interned at the Supreme Court, High Court, with NGOs, etc. I had done mooting and even won one. I had not written any research papers, but how much can that add up to? As it turns out, a lot! I never knew the power of writing a research paper until very recently. It is one of the easiest way to show your skill set and domain knowledge to prospective employers!

So how do you get a job at the big law?

These firms hire through campus placements, pre-placement offers based on internships and lateral hiring. So what do you need to have on your CV that would allow you to make it through the golden gates? What do you need to learn and focus on – skill sets or areas of law?

According to an interview of Kriti Kalyani who had worked with LKS for over two years, she applied for a summer internship with LKS via email and got through. Her prior internship stint at Nishith Desai Associates (NDA) helped her secure the internship. She explains further that how crucial the presentations of the interns was for a future with the organisation. She made a thorough presentation of chronological judicial pronouncements with a pattern of mindset of the judges in different forum. At LKS, the presentation was well liked and it resulted in getting her a call back.

I asked around people regarding landing jobs at these firms, read SuperLawyer interviews and came up with the following mantra:

# How to get an internship and convert them into PPOs

I used to struggle getting the internships of my choice. I must have applied a dozen times to the big law firms. I had above average grades, co-curricular activities, but I never got through. What was it that I was doing wrong?

Going through the interview of Anish Jaipuriar, I learnt that he did multiple internships with KCO. Thereafter, he applied for a position and was shortlisted for an interview. After a couple of rounds of interview with KCO, he secured his PPO!

So what had he done differently from the rest?

First and foremost, interning multiple times with the same law firm helps build trust and demonstrates an interest in the organisation. Thereafter, according to Anish, he did prepare his CV well and knew everything related to the information therein. He also read basics of the company law which was an important area of questioning for him.

What do you do in an internship to set you apart from the rest?

According to Anish, punctuality and dedication to the work goes a long way in creating an impression. You must seek out meaningful work from the associates. But that also means doing the small tasks exceptionally well first. Most people will put all their energies in meaningful work. But the ones who show the same level of integrity in small tasks, get noticed.That helps you to be entrusted with the meaningful work.

So to break down, he focused on his multiple internships and did the tasks at hand well. Then he read the relevant areas of law he was interested to work in. Thereafter, he prepared his CV well enough for questioning. This way he bagged the PPO with focused work and attention to details.

# How to build your CV

How does one build their CV to get the recruiters attention and a callback?

Harshita Khurana, has worked with SAM and is presently working with KCO. In her interview, she gave some advice on CV building. A CV is a candidate’s first impression, so it has to be the best possible one. You need decent grades, a diverse range of internships, moots, publications, etc. But more importantly your CV should clearly indicate your area of interest. It cannot be a mixed bag of areas of interest. An internship with in family law and an IPR moot might showcase diverse interest, but on your CV it may look confusing. Your publications should also be on the relevant areas of your interest.

The point is everything on your CV should be there for a reason and build up to the fact that you’re the perfect candidate for the position. So curate it accordingly to ensure a call back.

# How to ace your interview

I never interviewed well. The ones where I thought I aced it, I was not selected. And the ones where I thought that I have surely failed, I managed getting the job. So what is the key to acing the interview?

According to Harshita, for an interview, just study the organisation well and be yourself. Do not settle for anything that’s not your forte or not a part of your plan.

Ramanuj Mukherjee, CEO, iPleaders, shares his insights in an article about What Area of Law Should I Focus on to Get a Sureshot Job at a Law Firm? He mentions that what kind of questions he was asked during his placement interviews.

They mostly were a variation of the question, ‘What is your favourite area of law?’

So you must know the about the area of laws that you want to work in, for the foreseeable future with the law firm. The questions can be from any aspect of the focus area, so you must be well-prepared to answer them.

You could be interested in tax laws, media laws, M&A law, cyber laws, business laws, company laws, labour laws, etc. But you must know and have demonstrated skills in the area and your CV. You may have done internships, moots, diploma courses, publications, etc which adds value to your profile in the domain.

Kriti shares her senior’s advice for interviews. One needs to prepare the CV well, which includes reading up on all recent changes in the topics you did years ago. Kriti also brushed up on her area of interest – tax basics. She was also asked basic accounting questions from 12th standard. So the questions can basically be from any aspect of your CV. Therefore you must know it like the back of your hand. The interview techniques vary based on the interviewer. So you can only do so much.  For the rest, just be confident and trust all that you have learnt in five years of law school!

So to sum it all up, apply for internships in the law firms and follow-up. Then work dedicatedly on all assignments, impress superiors with your work. Build your CV to reflect the relevant area of focus and know it well. And last but not the least know about of your area of law and CV well to ace your interviews!

Hope you learn from my mistakes and newly learnt insights from the successful candidates.

Good luck!

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