In this article, Aastha Jain of IMS Law College discusses how to build a career in corporate law.

The Scope and Ambit of Corporate Law in India

The corporate sector in India has witnessed immense growth at a very rapid speed. Currently, the corporate sector is the backbone of the Indian economy and is contributing around 53% of the Indian GDP. the career and growth opportunities in this sector are ample which is more and more young aspirants are adopting this profession.

What is the objective of corporate law?

The objective of corporate law generally involves overseeing all legal and external affairs matters including litigation, investigations, compliance, mergers and acquisitions, contract matters and international trade issues. Corporate lawyers are tasked with safeguarding the legality of commercial transactions, representing companies and advising corporate employees of their legal rights and duties. It generally focuses on how corporate and companies interact externally through commercial transactions and internally through corporate governance.

Where do corporate lawyers work?

As this specialization mainly focuses on the corporates, a lawyer could represent entities of all kinds such as corporations, associations, sole proprietorship, and partnerships. The places where a corporate lawyer works are:

Law firms: Most corporate lawyers work in law firms where they will be engaged in drafting agreements for mergers, acquisitions, joint ventures, and the likes or giving legal advice on labor or corporate law-related matters. In a survey of 2014, out of 75 students graduating from the national law school, Bangalore only five to ten students were going for litigation and the rest were interested in joining a corporate law firm.

Corporate litigation: Many lawyers go for corporate litigation which involves a whole host of tort and contract issues and legal problems a corporation may face over the course of its life. Corporate litigation disputes can be broadly divided into:

• Deceptive or Fraud Practices
• Employer and Employee Dispute
• Violation of Contract

In-house counsel: Working in-house can be significantly different than working at a law firm. First of all, in-house lawyers have only one client-the company they work for. That means there isn’t any pressure to be a rainmaker or recruit new clients which is the reason why more and more are adopting this as an area of practice. They work in areas such as transaction, acquisitions, and contracts. And, since many corporations have a global presence, international law may come into play, as well. In short, members of the in-house legal team tend to be generalists.

Regulatory bodies: Corporate lawyers can work in regulatory bodies such as securities and exchange board of India (SEBI), Reserve Bank of India (RBI), Insurance Regulatory and Development Authority of India (IRDAI), Competition Commission of India (CCI) and Pension Fund Regulatory and Development Authority (PFRDA).  It includes work with various departments, including surveillance, legal affairs, commodities, and litigation. The lawyers can be part of the team that investigates matters related to the IPO irregularities and other scams.

Practice Areas under Corporate Law

Corporate law is a very vast area of specialization with many subjects coming in its ambit. Corporate lawyers generally specialize in one or two areas. Corporate law involves:

• Corporate restructuring

Corporate Restructuring is the process of making changes in the composition of a firm’s one or more business portfolios in order to have a more profitable enterprise. Simply put it is reorganizing the structure of the organization in order to make it more profitable and efficient.

The role of a commercial lawyer is to ensure that the restructuring is done with compliance of all corporate laws and regulations and that the company and its directors can forward on a sound financial and legal basis. There are many ways by which corporate restructuring is done and a role of a lawyer is vital in each and every step.

Most companies are under the pressure to increase their earnings and revenues. For this purpose, corporations are often involved in merging with other business, acquiring other businesses or divesting portions of the existing business. The role of a corporate lawyer is:

• Adhere to the provisions given in section 230 to section 240 of the Companies Act, 2013 which deal with arrangements, amalgamations, mergers and the procedure to be followed for getting the arrangement, compromise or the scheme of amalgamation approved
• To assist their clients with their appropriate financing for mergers and acquisitions and provide advice concerning the drafting, negotiation, and performance of contracts for the sale of portions of the business.
• In acquisitions, the lawyers participate in due diligence checks about the company which has to be acquired.
• It may involve the attorney reviewing the company finances, employee agreements, intellectual property, real estate leases, environmental liabilities or any pending litigation involving the company and advice the buyer or seller about these risks.
• Not only do the lawyers advise the buyer/seller about the risks but also play a major role in structuring a deal by helping the entity determine of what the portion of the company will be sold and whether the sale of the company will be structured as the sale of the company’s assets or sale of a stock of the company.
• Drafting a non-compete agreement stipulating that the seller cannot compete immediately with the buyer’s newly acquired business.
• Assisting in matters of transfer of technology and intellectual property from one entity to another.

Insolvency & Bankruptcy

Bankruptcy and Insolvency are complex procedures and a host of critical decisions for an entity. The role of a bankruptcy attorney is to counsel the entity on the bankruptcy process and whether it is the right decision or not. They also have to adhere to the provisions mentioned in the Insolvency and Bankruptcy Code, 2016. The attorneys help an entity to take a closer look at the debts and the assets and the financial condition of the company. The lawyer is also tasked with the responsibility of conducting evaluation and analysis of the financial documents and also assist the entity during the filing process.

Refinancing

Involving lawyers in refinancing musters confidence for the entity while dealing with banks and other corporate financial sources. They can negotiate favorable terms or see the implications of the proposals the entity might have missed. They assist in easing the situation and restore a more equitable agreement.

2. Compliance

Another branch of corporate law where a lawyer can practice is compliance. This includes being a law officer or an in-house counsel to a company to ensure there is a compliance of rules by the company and its employees. The lawyers can act as a :

• In-house counsel: In-house counsel act as internal advisers on myriad business and legal issues, including labor and employment issues, intellectual property issues, contractual issues, and liability issues. They have a different role depending on the type of company they are counseling for.

• Counseling for publicly held companies: publicly held companies are those which have their shares registered at the stock exchange such as Bombay stock exchange. The duty of the corporate lawyer is to be familiar with all the SEBI rules and assist the companies in the matters regarding the issuance of securities as well as the detailed reporting requirements. The corporate lawyers also advise publicly held companies with regard to issues such as the public disclosure of disappointing financial results, an adverse judgment in a litigation matter, or the initiation of a government investigation regarding the company.

• Counseling for privately held companies: Privately held companies are those in which the stock is limited and is not available to be traded on the public stock exchange. The role of the corporate lawyers is to give advice on the formulation and enforcement of contracts, on tax matters, and even on succession issues, in which attorneys help plan for the orderly transfer of ownership or management to the next generation of owners.

• Counseling for business start-ups and joint ventures: New business is typical faces with numerous decisions including whether to structure the business as a corporation, a partnership, a limited liability company, a sole proprietorship, or even as a joint venture. The role of the corporate lawyer is to work closely with the investment bankers and venture capitalists as to seed money.

3. Corporate litigation

Corporate litigation encompasses a lot more than just one business suing another. In fact, corporate litigation includes any type of legal proceeding having anything to do with a business or corporation and can include steps taken to avoid litigation as well as actually litigating and managing business disputes.

The functions of a lawyer in corporate litigation include:

• Ensuring compliance with wage and anti-discrimination laws
• Defending companies against wrongful termination suits
• Securing compliance with new accounting and corporate governance regulations
• Litigating or mediating shareholder-derivative lawsuits
• Managing corporate tax compliance
• Settling labor disputes with unionized workforces as well as with at-will employees and professionals
• Breach of contract issues, usually with other businesses, whether defending or prosecuting
• Tort issues, if a customer or client suffers injury from one of your products or services
• Corporate real estate issues, from premises liability to disputes with landlords or regulators

A tax advocate can act as an in-house counsel can have a separate practice. A lawyer has a huge role to play in a tax firm which includes responsibilities such as:

•    All legal services in the fields of Taxation laws
•    Income Tax Advisers
•    Tax Appeals Advisers
•    Tax Law Compliance And Returns
•    Tax Law Documentation
•    Legal advice forum for all matters related to Tax
•    Goods and services tax compliance, registration services
•    Filing of ITR, returns of taxes, litigation services in the fields of income tax
•    GST advise, planning, appeals, tax compliance
•    Advice and filing of Income Tax Returns (ITR), Dual Taxation advice, foreign tax advice, Foreign Exchange Management Act (FEMA) compliance, Compliance of the RBI Guidelines for investors, foreign investments

5. Intellectual property rights

This is an emerging field which promises a very huge scope of practice to corporate lawyers. Intellectual property lawyers are professionals trained in the legislation and regulations that protect individuals’ creations from intellectual theft. Basically, the role of lawyers is to deal with everything legal in intellectual property. For industrial property, you might hire an intellectual property lawyer to help you file an application for a patent or trademark, defend your patent or trademark, represent your case before a patent examiner or board, or write a licensing agreement.

IP lawyers have to also litigate in matters of intellectual property and represent clients in courts. Some IP lawyers also specialize in particular fields’ intellectual property laws: biotechnology, pharmaceuticals, computer engineering, nanotechnology, the internet, and e-commerce.

6. Banking and finance

A major practice area includes banking and finance which plays a pivotal role in the Indian economy. The areas where a corporate lawyer can practice in banking and finance includes Project and Leveraged Finance, Debt Restructuring, Acquisition Finance, Syndicated Lending, and Structured Products among others. The type of institutions includes public & private sector banks, financial institutions, multinationals, and non-banking financial companies.

7. International capital markets

The scope for corporate lawyers in international capital markets is very high. They work closely with Underwriters, FIIs, Banks, Venture Capitalists, and Asset Management Companies. They routinely advise clients on the aspects of Initial Public Offerings, Private Placements, Qualified Institutional Placements, Foreign Currency Convertible Bonds, Global Depository Receipts and other high-value transactions.

8. Private equity and venture capital transactions

Corporate lawyers working in this niche are required to work on a range of services to private equity funds – from funds formation and structuring to advising on primary and secondary investments. The work generally revolves around assisting clients in exits and provide advice on enforcing contractual rights in contentious settlements. Here the corporate lawyers need to have an in-depth understanding of India’s unique regulatory landscape and an understanding of Indian promoters and counterparties will behave in different industry sectors.

9. Real estate

A large percentage of corporate lawyers are engaged in the real estate sector. Real Estate lawyers advise some of India’s largest real estate focused funds and real estate companies in investments, joint ventures, property acquisitions/ sales, and leases. The lawyers have to be well versed with a range of real estate structures and have a wide range of experience with handling complex issues in this sector.

How much can a corporate lawyer earn

The corporate sector is considered to be the most paying one as compared to the other areas of practice in law. The earnings keep on rising commensurate with the experience. Different titles have different salaries and also differ according to the type of work a corporate lawyer is assigned.

Average Salary of Employees Having an LLB Degree

These figures provide just an estimate of the income of corporate lawyers and are subject to many other factors such as a city of practice, experience, qualifications, skills etc.

To learn more about what the top law firms are paying you can click here.

How to design your CV best suited for corporate law

To get into a premier law firm you need to design your CV in such a way that you adequately convey your expertise and knowledge about corporate law. A CV missing vital information or lacking the proper format is likely going to be sent into the garbage bin. Every aspect of the document needs to be geared toward getting this new position. Following are the ways by which you can make your CV stand out:

• Make an objective statement

Generally, CVs don’t have objective statements. Instead, these documents include personal statements, which are also referred to as professional profiles. A personal statement is a short paragraph consisting of 50 to 200 words. The goal of this blurb is to pique the interest of recruiters so they’ll call you for an interview.

Whenever you write this segment, it should always answer three questions. Who are you? How can you benefit the company? What is your career goal? The most effective statements match a candidate’s skills and qualifications to those in the job description.

• Optimize the experience section

Your experience section provides hiring managers with detailed information about your responsibilities, accomplishments, and skill set. Always list your employers in reverse chronological order. Include position titles, company names, employment dates, and locations. Make sure you only include positions related to the job you’re pursuing.

• Indicate your software knowledge

As a corporate lawyer, you spend a lot of time drafting contracts and conducting research. Your knowledge of specific software applications is an integral part of your profession. With the CV, you can add a section for this skill set using a subheading such as Computer Skills‚ Software Skills. Etc.

How to get an extra edge for excelling in corporate law

The growth opportunities in corporate law are ample and the seats are very limited. In order to get into a premier corporate law firm just having a law degree is not enough. A lawyer needs to have an extra edge over the other in order to excel in his career.

• Seek exposure

Experience and exposure can be sought anywhere. You can start out small and improve on your skill set. It doesn’t matter if the place you are interning at isn’t a huge firm, just gain experience and work on your skills day by day.  Chalk down a list of companies or law firms you want to work for. Find out the areas in which they operate, or you could select the target organizations on the basis of your favorite legal genre.

• Stay updated

Being a lawyer requires a lot of reading and being updated with everything happening around the globe. Keep yourself constantly updated and apply for every opportunity available. Have your Linkedin, Naukri, Monster, Shine.com, and all such profiles up and running. Make sure to call them and get an update on your application. Understand the fact that there are several individuals like you who are applying for the same post and your application might go unnoticed. An application without a call is no application at all and follow up from time to time.

• Gather recommendations

top investors never talk to entrepreneurs unless they come armed with good recommendations from successful entrepreneurs. This is applicable in the law field as well. Find a mentor who will guide you and help you in your development as a professional. You need to create valuable connections in the industry and to build lasting relationships. Work hard enough and prove your credibility to compel your senior to recommend you. All it takes is a partner of the firm to forward your CV to the HR, and rest is on your performance at the interview.

• Do as many corporate related courses as you can

Select one niche in the corporate law and work towards that. Do courses related to that. Strengthening concepts in companies act, insolvency act, negotiable instruments act is very important.

Pursuing Diploma in Entrepreneurship Administration and Business Laws will definitely help you out. This course was created to equip lawyers and entrepreneurs with essential business law skills. A business goes through many stages of growth after incorporation, and various skill sets are required to handle evolving challenges that businesses face on the legal, regulatory and business front. The course was originally launched for business leaders and entrepreneurs, but later proved to be very popular with business lawyers as it inculcates a wide range of very useful legal skills and essential knowledge. Another category of people who benefit a lot from the course are 2nd generation business leaders from family businesses who want to bring in new skills and ideas in an already established business.

Click here

The scope of corporate law in India

Corporate law is a very powerful and versatile option in the field of law. Both the government and private sector has ample opportunities for a career in corporate law and the demand of corporate lawyers is increasing day by day. A lawyer can choose any area of practice in corporate law and excel at it. After pursuing a degree in corporate law a lawyer can work at an MNC, law firm, asset management company, banks, insurance companies etc.

The post Career in Corporate Law – All you need to know appeared first on iPleaders.

INTRODUCTION

More often than not, individuals and businesses face a predicament where they are subjected to certain acts by peers, competitors, ex-employees and other malicious entities, which do not squarely fall within the ambit of “cyber-crimes”. The end result is a few visits to the police station without any remedy to avail, or worse, a frivolous FIR resulting in an unnecessary waste of time and funds. In reality, the Information Technology Act (hereinafter referred to as ‘the Act’) is well equipped to deal with such “contraventions” under Chapter 9, Section 43 and 43-A, by awarding compensation to the victim, and in certain cases, penalty upon the offenders. These offences require a complaint to be lodged before the adjudicating officer under the Act, and this article explains exactly how to go about the process.

Offences under the Information Technology Act

The acts that comprise of offences under Chapter 9 can be classified under 2 major heads, acts by persons/individuals, and acts by a body corporate. The offences by a person are covered under Section 43 of the Act, and they are elaborated in detail hereunder:

1. The first and foremost pre-requisite of all such acts is that they should be without the permission of the owner, or the person in charge of a computer, computer system, or computer network[1].
2. Accessing or securing access to a computer, computer system or computer network (hereinafter collectively referred to as “computer”). The mere entry into a computer, either by guessing the password or by using third-party tools to compromise the security of the computer, is an offence under the act. Under section 2(a) of the Act, ‘access’ is defined to include “entry into/instructing or communicating with the logical, arithmetical or memory function resources of a computer”[2]. Therefore, even if there is an indirect access of the hard drive of the computer, or certain files, without accessing the computer through conventional means, it will amount to a violation under this subsection.
3. Downloading, copying, extraction, of any information/data from a computer, including data that is stored in a removable storage device. Downloading, although not defined in the Act, its technical meaning encompasses copying of data from one computer system to another. This involves making a copy of the data without harming/damaging the original data. Any and all data, including a database of phone numbers, client lists, designs, artwork, photographs, videos, document files etc. amounts to a violation under this subsection. There is some lack of clarity on the exact definition of extracting data. It can either include taking out the original data altogether without making a copy or the act of selectively procuring data from a particular file, without copying the whole file.
4. Direct introduction or causing a contamination indirectly, of any form of a virus into a computer. This is usually done by directly introducing a virus via an external storage device, or by leaving a link or a file on the computer, which when accessed, releases the virus. Computer Contaminant has been further explained in Section 43 Explanation (i) to include any set of computer instructions that are designed:
   • “to modify, destroy, record, transmit data or programme residing within a computer, computer system or computer network; or
   • by any means to usurp the normal operation of the computer, computer system or computer network.”[3]

The foresight of the legislature has made it possible to include the increasing number of contaminants that are created every day. For ex: if not for Explanation(i)(b), the recent Ransomware attacks would not have been included under the definition of a computer contaminant, as they do not in any way modify, destroy or transmit any data or programme, but simply block the access to a computer, till a certain amount of ransom is paid. But thanks to the 43(i)(b), taking control of the normal operation of a computer is also an offence, thereby including such attacks.

1. Damaging or causes to be damaged any computer, or any programme within the computer. This damage can be a physical damage to the hard-drive of the computer, or software damage by introducing a malicious element into the computer such as virus, malware, botnets, etc.
2. Disruption or causes disruption of any computer. This would involve any activity that would cause hindrance in the normal functioning of a computer. This provision has a wide ambit, allowing for unforeseen acts, or new forms of contaminants that do not clearly fall within the other provisions to be included as an offence if the interpretation allows so.
3. Denies or causes denial of access to any person authorized to access any computer. This provision is specifically inserted to make DOS and DDOS attacks, a distinct offence under the Act. There are various ways to deny access to a computer, including physically locking the computer, detaching certain parts of a computer, or simply changing the password, but the most common and malicious of them all is Denial of Service or Distributed Denial of Service, in which specifically a computer or a computer network is targeted.

Service in this context means the access to various content, software, data etc, that are available on a website or a computer network. “For example, if you are watching a video on YouTube, you are accessing an HTML file kept on YouTube’s servers which have an embedded video on it. YouTube lets you access and watch it because then YouTube can show you ads. This transaction is thus complete with a win-win situation for YouTube and you. The Service is complete when the Server renders the data to a user, and the user is able to access it successfully.”[4] DOS and DDOS are attacks on a computer’s server, by generating high volumes of content access or service requests, that overwhelms the CPU or memory of the server, causing it to slow down, and if the attack is persistent enough, shut down. The effect be somewhat similar to you trying to run Fortnite, Farcry and GTA 5 on your computer, all at the same time, making your computer slow down and eventually freeze.

DDOS attacks are far more complex, as these attacks come from a distributed network of computers, which are being controlled by using a surreptitious malware infecting these unaware computers at any point of time in the past. Once enough computers are infected, the malware allows the botmaster (the main computer that controls other computers) to generate traffic and divert it to the target computer, in this case, the server. Each hour of downtime causes serious losses to the tune of several millions of dollars to the victim, and at the same time denies legitimate service seekers access to such service.

• Providing any form of assistance to any person, to facilitate an offence or contravention under this Act, rules or regulations made thereunder, also amounts to an offence. This provision is essentially the enabling provision to make abetment of a contravention, a contravention in itself.

In IPC, abetment of an act includes three major elements, instigation, engaging in a conspiracy, or intentionally providing aid to commit an offence. In contrast, by wording it in the form of “providing any form of assistance”, the legislators have kept it open to include a large range of acts that can amount to abetment, which is absolutely necessary given the evolving nature of the cyber law domain.

Charging the services availed of by a person to the account of another person by tampering with or manipulating any computer. This is a common form of an offence referred to in common parlance as “identity theft”, in which a person’s financial and personal information is stolen, in order to avail certain benefits online.

In the cyber world, the concept of identity and identity verification is a huge problem, requiring tons of companies to develop software, protocols and authentication systems to verify the identity of a person. This is because in the cyber world the real identity of a person often gets blurred. I may be purchasing gifts online with my debit card for someone residing in a different city, but at the same time, I may use my father’s Amazon account to do so. As long as the payment get through and the product gets delivered to the intended recipient, everything flows normally. The problem occurs when a third party procures the credit card details of an unaware victim, and uses the same to make purchases online, billing it on the victim’s card. This happens by a number of means such as phishing, pharming, malicious software, or the good old stealing your wallet trick, but it affects every victim in a similar way, causing heavy monetary losses. In most international payments, there is no need for an OTP, and the CVV number acts as the passcode for successfully completing a transaction.

Destroying, deleting, or altering any information residing in a computer resource, or diminishing its value or utility, or affecting it injuriously by other means. A “computer resource” under the Act includes not only a computer, computer system, or a computer network, but also includes data, computer database, or software. This provision encompasses information that is stored on a software or database online, thereby making it illegal to commit any of the aforementioned acts with respect to such data. Thus, if a cloud-based database (the data of which does not reside in a particular computer), is accessed through a computer, and the data residing in the database is destroyed without destroying any data in the computer used for such access, it also amounts to an offence under the Act.

Stealing, concealing, destroying, altering, or causing any person to steal, conceal, destroy or alter any computer source code used for a computer resource with an intention to cause damage. To understand this provision better, we first need to understand what is a source code, and its importance in any computer.

A Source code is essentially the first set of codes written for a program. This is written in plain text in any of the programming language, and then processed through either a compiler or an interpreter (depending on the language it is written in) to be converted into machine language or machine code. Machine code is the code machines are capable of understanding, which is basically ones and zeros, or binary.

It is important to incorporate a provision that protects source codes, as software companies spend millions of dollars worth of resources to make commercially marketable products out of these source codes. They want to protect their source code for various reasons, such as- preventing it from falling into the hands of competitors, protecting it from malicious attackers that can make severe modifications to the code and make the program vulnerable, and many other ramifications. There are a lot of source codes that are not kept a secret, and such software are known as open source. Some common examples are Mozilla Firefox, WordPress, VLC, and Linux, which are all open to modification and redistribution.

The offences by a body corporate, specifically, a company, firm, sole proprietorship, or any other commercial association, is covered under Section 43-A of the Act. This section has the following essentials:

• A body corporate, must be in possession, dealing or handling any sensitive personal data or information in a computer resource
• Such a computer resource must be owned, controlled or operated by the body corporate.
• The body corporate must be negligent in implementing and maintaining reasonable security practices and procedures for such data or information.
• Thereby causing wrongful loss or wrongful gain to any person.

Reasonable security practices and procedures have been explained in the provision as: “security practices and procedures designed to protect such information from unauthorised access, damage, use, modification, disclosure or impairment, as may be specified in an agreement between the parties or as may be specified in any law for the time being in force and in the absence of such agreement or any law, such reasonable security practices and procedures, as may be prescribed by the Central Government in consultation with such professional bodies or associations as it may deem fit”^[5].

This provision for reasonable security practices is a stringent one, as it clearly places a burden on the body corporates to handle sensitive personal data with a high degree of protection, but at the same time allows leniency to the extent that it allows the parties to agree upon the practices and procedures for such protection of data. Thus, the provision has an essential element of balance, without being excessively rigid since the inception, but keeping the option open to tightening the leash whenever required.

Further, the provision was elaborated by clearly defining what is included in the definition of “sensitive personal data or information”, by The Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules which were notified by the government in 2011.

Under Section 3 of the Rules, “Sensitive personal data or information of a person means such personal information which consists of information relating to;—

• password;
• financial information such as Bank account or credit card or debit card or other payment instrument details;
• physical, physiological and mental health condition;
• sexual orientation;
• medical records and history;
• Biometric information;
• any detail relating to the above clauses as provided to body corporate for providing service; and
• any of the information received under above clauses by body corporate for processing, stored or processed under lawful contract or otherwise:

provided that, any information that is freely available or accessible in public domain or furnished under the Right to Information Act, 2005 or any other law for the time being in force shall not be regarded as sensitive personal data or information for the purposes of these rules”^[6].

In the same rules, Reasonable Security Practices and Procedure have been prescribed to include “such security practices and standards and have a comprehensive documented information security programme and information security policies that contain managerial, technical, operational and physical security control measures that are commensurate with the information assets being protected with the nature of business”^[7]. The International Standard IS/ISO/IEC 27001 on “Information Technology – Information Security Management System- Requirements” is one of the approved standards under these Rules.

There have been innumerable instances wherein lakhs of rupees have been siphoned off from numerous bank accounts, either due to some lapse on the bank’s end or by making a duplicate sim card which provides the OTP or other 2nd Factor Authentication messages, causing overnight transfer of money into various dormant bank accounts^[8]. When the police are informed about this, they often find that these bank accounts are owned by illiterate folk having little to no knowledge about such transaction taking place in their account. In such scenarios, it is mostly a lapse in the “reasonable security practices and procedure” by the bank or the telecom service provider, resulting in such transfers. In numerous cases before the Adjudicating Officer, it has been found that upon issuance of a duplicate sim card, Telecom Service Providers do not shut down the Messaging services for 24 hours, which is the normal protocol to avoid any OTP or 2-Factor Authentication messages to fall into the hands of malicious entities. In a lot of cases, there have been no policies or measures in place to ensure that the person who has put in a duplicate sim card request, is the legitimate owner of the sim card.

Body corporates in today’s day and age have an immense amount of information on any individual, to the extent that the individual can be monetarily or personally harmed if such information is compromised in any manner. Yet lax security protocols lead to various cyber-crimes being committed almost every day. It is an obvious fact that we cannot survive without Telecom Services, Banking facilities, or for that matter Social Networking Websites these days; but when such a large amount of trust is being placed in the hands of a corporation, the burden of maintaining that trust by ensuring effective security protocols for our personal data is an absolute necessity, allowing for no compromise whatsoever.

Section 45 is a residuary penalty provision, which provides that in case there is a contravention under these rules and regulations, for which no penalty has been stipulated, the penalty to be paid would be to the tune of Rs. 25,000 to the person so affected by the contravention.

How to recover compensation under the Information Technology Act

APPOINTMENT OF ADJUDICATING OFFICER

Section 46 of the Act empowers the Central Government to appoint any person not below the rank of Director to the Govt. of India or an equivalent officer of a State Government to be an adjudicating officer under the Act, and such an officer has the powers to hold inquiries and award penalties, for the purpose of adjudicating any contravention under the Act, rules, regulation, direction or order. This provision enables the government to appoint a quasi-judicial authority to adjudicate upon these contraventions.

JURISDICTION

The pecuniary jurisdiction vested upon the adjudicating officer is to the extent of Rs. 5 crores, i.e. the adjudicating officer can order compensation or penalties to the maximum amount of Rs 5 crores. There seems to be some lacuna around the jurisdiction aspect, due to the bar of a civil court’s jurisdiction under Section 61 of the Act, thereby leaving a victim remediless in case he prays for compensation for damages beyond Rs 5 crore in his complaint.

This lacuna can be easily removed by a harmonious interpretation, and in my view, the bar in jurisdiction extends only “to entertain any suit or proceeding in respect of any matter which an adjudicating officer appointed under this Act or the Cyber Appellate Tribunal constituted under this Act is empowered by or under this Act”^[9]. As complaints involving a prayer beyond Rs 5 crore are not suits or proceedings that an adjudicating officer or Appellate Tribunal is empowered to adjudicate, the civil court should ordinarily have jurisdiction.

POWERS OF THE ADJUDICATING OFFICER

The adjudicating officer has the powers of a civil court under the Code of Civil Procedure while trying a suit, for the following matters:

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of documents or other electronic records; (c) receiving evidence on affidavits;

(d) issuing commissions for the examination of witnesses or documents;

(e) reviewing its decisions;

(f) dismissing an application for default or deciding it ex parte;

(g) any other matter which may be prescribed.

Further, the adjudicating officer shall also be deemed to be a civil court for the purposes of ORDER XXI of the Civil Procedure Code, which are powers of execution of orders and decrees.

While determining the quantum of compensation under these provisions, the adjudicating officer has to consider the following factors:

(a) the amount of gain of unfair advantage, wherever quantifiable, made as a result of the default;

(b) the amount of loss caused to any person as a result of the default;

(c) the repetitive nature of the default.

The compensation that can be awarded under the act has to be proportionate to the actual losses caused to any person. Further, what needs to be particularly taken care of is the number of times such a contravention is being caused, and in case, even after repeated compensation and penalties the individual/body corporate commits a contravention, a large deterrence setting compensation or penalty can be levied.

WHAT IS THE PROCESS OF REGISTERING A COMPLAINT BEFORE THE ADJUDICATING OFFICER?

Although there are different adjudicating officers appointed in different states, they are usually IAS officers in the Department of Science and Technology (in case of Gujarat) or Department of Information Technology (in case of Maharashtra and Delhi). The application form for lodging a complaint is available on their respective websites, and contains the following particulars that need to be filled by the complainant:

I. Complainant

1. Name
2. E-mail address
3. Telephone No.
4. Address for correspondence
5. Digital Signature Certificate, if any I

II. Respondent

1. Name
2. E-mail address
3. Telephone No.
4. Address for correspondence
5. Digital Signature Certificate, if any

III Damages claimed Fee deposited Demand Draft No.______ dated __________Branch_______

IV Complaint under Section/Rule/Direction/Order etc.

V Time of Contravention

VI Place of Contravention

VII Cause of action

VIII Brief facts of the case”^[10]

The fee for every application made is Rs. 50 and the fee towards damages claimed by way of compensation is calculated on the following basis:

Source: www.it.maharashtra.gov.in/filing_complaints_under_it_act

A victim can appear either through their advocate, or party-in-person, and argue their complaint. The time taken to resolve such disputes is usually less than a year, and interim-injunctions passed in the initial stages of the case allows the victim to get their money reverted back to their accounts, if the same have been frozen before being further siphoned off/withdrawn. Along with filing a complaint, the victim should inform all the banks in whose accounts such transactions have taken place, at the earliest, so as to enable the banks to freeze all accounts connected to such contraventions.

References

[1] Section 43 of The Information Technology Act, 2000.

[2] Ibid

[3] Ibid

[4] https://indiatechlaw.com/security/denial-of-service-dos-attack-relevant-indian-laws/

[5] Section 43a of The Information Technology Act, 2000.

[6] Rule 3 of The Information Technology (Reasonable Security Practices and Procedures and Sensitive    Personal Data or Information) Rules

[7] Rule 8 of The Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules

[8] https://www.livemint.com/Money/GzDPlWRBLaQXswdyfA9iGI/Banking-frauds-are-no-longer-a-rich-mans-problem.html

[9] Section 61 of The Information Technology Act, 2000

[10] www.it.maharashtra.gov.in/filing_complaints_under_it_act

The post How to recover compensation under the Information Technology Act appeared first on iPleaders.

In this article, Saumya Sinha of RGNUL discusses Laws for the prevention of Food Adulteration in India.

The food industry includes manufacturing, packaging, processing, wholesale and distribution of food products. Compromising quality of these products is essentially compromising the health and safety of the populace of the country. Therefore, the quality and standard of food that reaches the public has to be above a certain benchmark. The food adulteration laws basically set this benchmark. Adulteration of food is defined as “the addition or subtraction of any substance to or from food so that the natural composition and quality of food substance is affected”.[1] This results in an inferior quality of the food. This can either be done intentionally for making some kind of profit or it can happen unintentionally due to the negligence of the person handling the food item. In either of the case, the person is held responsible for food adulteration under the laws of the country.

Food adulteration is on a rise in the country as revealed by various statistics.

• According to the records of health and family welfare ministry from the financial year 2012-13, 20% of our food is either adulterated or substandard.
• The amount of adulterated food in the market has seen an increase from 8% to 20% from the year 2008-09 to 2012-13.
• 32% of the packaged food products that we consume are genetically modified.
• According to a survey conducted by FSSAI on adulteration of milk, nearly 70% of the milk is adulterated with water being the most common adulterant. The surprising result of the survey was that even detergent was found to be one of the adulterants which is a major health hazard.
• Therefore, a check on food adulteration is very crucial to keep the adulterers within check.

Background

The adulteration of food is a subject in the Concurrent list of the Constitution.[2] Prior to 1954, there were several state laws to regulate the quality of the food. However, there was variance in the provisions of different states and this posed problems in trade between different provinces. The need for a Central legislation was felt. Thus, the Prevention of Food Adulteration Act, 1954 was enacted by the Union legislature to tackle the problem of food adulteration which was rampant in the country. This Act was in operation until it was repealed in 2006 by the Food Safety and Standard Act, 2006. Along with it, several orders such as the Milk and Milk Products Order, 1992, the Fruit Products Order, 1955, the Meat Food Products Order, 1973, etc also got repealed by the 2006 Act.

Laws at present

Central Legislation

There were several defects in the Prevention of Food Adulteration Act, 1954. Thus, to remove those defects and consolidate the laws relating to food safety and standards, the Parliament enacted the Food Safety and Standards Act, 2006 (hereafter referred to as ‘FSSA’). This Act repealed all the other laws in force relating to the quality of food. Section 91 of the Act empowers the Central Government to make rules under the Act. Some of these rules enacted by the Government which regulates the standard of food products are:

• Food Safety and Standards (Licensing and Registration of Food Businesses) Regulation, 2011.
• Food Safety and Standards (Packaging and Labelling) Regulation, 2011.
• Food Safety and Standards (Laboratory and Sampling Analysis) Regulation, 2011.
• Food Safety and Standards (Food Product Standards and Food Additives) Regulation, 2011.

Position under the Indian Penal Code, 1860

Apart from these laws and regulations, there are provisions under the Indian Penal Code too which deal with food adulteration. Chapter XIV of the Code lays down provisions dealing with ‘offences affecting the public health, safety, convenience, decency, and morals’. According to Section 272 and 273, food or drink adulteration or sale of such food or drink is an offence punishable with an imprisonment which may extend to six months or fine or both. However, some states like Uttar Pradesh and West Bengal considered it to be insufficient punishment and made amendments in the provision with respect to punishment in the year 1970. The state amendment has made the offence punishable with imprisonment for life along with the liability of fine.

Provisions under Food Safety and Standard Act, 2006

The Food Safety and Standard Act, 2006 is a comprehensive legislation dealing with various aspects with respect to the regulation of food safety. The provisions under the Act can be divided into various heads.

Establishment of various authorities and their responsibilities

The FSSA establishes various authorities for the effective implementation of the provisions of the Act.

• Food Safety and Standard Authority of India (FSSAI) is established under Section 4 of the Act. It is the most important authority which supervises and regulates food safety and standards.
  • The Act provides that its head office shall be in Delhi.
  • Moreover, it can also establish offices in any other place.
  • FSSAI is a body corporate having perpetual succession, common seal and the right to own and dispose of property in its own name. Like any other body corporate, it can sue and be sued in its own name.
  • It consists of a chairperson and 22 members selected by a Selection Committee constituted by the Central Government.
  • The Act also provides for the appointment of Chief Executive Officer by the Central Government. He is the legal representative of the Food Authority.
• The Act provides that the Food Authority shall establish various other authorities.
  • A Central Advisory Committee for ensuring cooperation between the Food Authority and the enforcement agencies.
  • Scientific Panels in order to deliberate on certain matters in consultation with representatives of the concerned industry along with consumer representatives.
  • Scientific Committee to advice the Food Authority on various issues by giving their scientific opinion.
• The Act empowers the State Government to appoint a Commissioner of Food Safety for the State for effective implementation of the provisions at the State level.
  • The Commissioner of Food Safety is given the authority to appoint a Designated Officer for each district.
  • The Commissioner is also empowered to appoint Food Safety Officers.

The Act does not only lay down the establishment of various authorities but also comprehensively provides for their responsibilities and duties.

Licensing and Registration

Section 31 deals with licensing and registration of food business.

• It prohibits any person to operate any food business without a license.
  • The license can be obtained by applying to the Designated Officer.
  • The Designated Officer has been empowered by the Act to either grant or reject the license. Such rejection is in the interest of health and safety of the public.
  • However, such rejection is to be made only after allowing the applicant to be heard and the reasons for such rejection has to be recorded.
  • The Act also lays down that if the Designated Officer has neither accepted nor rejected the application, the applicant may start his business on expiry of two months from the making of such application.
  • The Commissioner of Food Safety is given the authority to hear all the appeals against the rejection of license.
• There are certain exceptions to the above general rule. The Act exempts certain people from the requirement of obtaining a license.
  • A petty manufacturer engaged in manufacturing or selling of food products.
  • A petty retailer, hawker, itinerant vendor or a temporary stall holder or small-scale or cottage or such other industries relating to food business or tiny food business operator.[3]
• However, they still have to get them registered with the appropriate authority.

General principles of food safety

Section 18 of the FSSA provides for the general principles which are to be followed by the various authorities while implementing the provisions of the Act such as endeavour to achieve an appropriate level of protection of human life and health and the protection of consumers’ interests[4], carrying out risk management, etc.

Further, there are general provisions related to food products contained in Chapter IV of the Act. These include the regulation of the use of additives or processing aid in the food or the presence of contaminants, insecticides or pesticides residues, veterinary drugs residues, etc. in the food products. There are special provisions dealing with packaging and labelling of foods. Moreover, the Act also regulates the food products which can be imported. Unfair trade practices and misleading advertisements are prohibited under the Act.

Analysis of food

The Act gives out the responsibility to the Food Authority to notify food laboratories and research institutions accredited by the National Accreditation Board for Testing and Calibration Laboratories or any other accreditation agency[5] for the analysis of food samples. This analysis is to be done by Food Analysts appointed by the Commissioner of Food Safety.

Offences and Penalties

Section 48 lays down the provision of offences. It provides the circumstances where a person shall be liable for rendering any food item injurious by the various means such as adding to it an article or substance or removing certain elements from the food which results in deterioration of its quality. FSSA provides for penalties and punishments for contravening the provisions of the Act.

The Act consists of a comprehensive list of offences in which the penalties shall be imposed.

• A penalty for selling of food which is not of the quality as per the regulations under the Act. The penalty, in this case, shall not exceed five lakh rupees.
• A penalty for manufacturing for sale, storing, selling, distributing, importing food of sub-standard quality which may extend to five lakh rupees.
• A penalty for manufacturing for sale storing, selling, distributing or importing misbranded food products which may extend to three lakh rupees.
• The Act prohibits misleading or deceptive advertisements and there is a penalty for the same which may extend to ten lakh rupees.
• A penalty is also prescribed for manufacturing, storing, selling, distributing or importing a food product containing extraneous material and such penalty may extend to one lakh rupees.
• The Act imposes a penalty on the food business operator or importer who fails to comply with the provisions of the Act which may extend to two lakh rupees.
• There is a penalty which may extend to one lakh rupees for manufacturing or processing food in unhygienic or unhealthy conditions.
• The Act also imposes a penalty for the possession of adulterant.
• Further, the Act also lays down that if no separate penalty is provided and an act is in contravention to the provisions or regulations of the Act, then a penalty shall be imposed which may extend to two lakh rupees.

Apart from penalties, there are punishments too which are laid down in the Act. The term of imprisonment differs according to different categories.

• Manufacturing for sale or storing or selling or distributing or importing food which is unsafe is punishable under the Act.
• The Food Safety Officer may seize food products and a person who interferes with such seized items is liable for punishment.
• There is punishment for providing false or misleading information.
• Punishment is also laid down for obstructing or impersonating a Food Safety Officer.
• The Act provides for compulsory obtaining of license with the exception in a few cases and a case of non-compliance is punishable under the Act.
• There is a provision for punishment in case of subsequent offences under the Act.

Apart from penalty and punishment, the person contravening the provisions of the Act may also be held liable to pay compensation to the victim or the legal representative of the victim if such contravention has led to death or injury.

Adjudication authority

The Act has separate provisions with respect to the adjudication of the matters related to food safety and standards such as compounding of offences, the establishment of Food Safety Appellate Tribunal, etc.

Consumer Protection Bill, 2018

The Consumer Protection Bill, 2018 is a revised version of Consumer Protection Bill, 2015 after the Standing Committee referred several changes in it. The Bill seeks to replace the Consumer Protection Act, 1986 and was introduced in the Lok Sabha in January 2018. The bill contains several new provisions to tackle the new challenges posed by the growth and development in the consumer market. With respect to food adulteration laws, the Bill has added certain provisions such as penalties for misleading advertisement as well as manufacturing and selling of adulterated or spurious goods.

Conclusion

The food adulteration laws have been evolving with the changing needs of the time. Earlier there were different laws for different provinces which were repealed and consolidated by the Prevention of Food Adulteration Act, 1954. However, even this Act could not stand the test of time and had to be repealed due to various defects. The Food Safety and Standards Act, 2006 and the regulations made under the Act comprehensively deal with the issue. However, it is important for the authorities under the Act to be vigilant so that effective results are achieved.

References

[1] Punishment for Food Adulteration- FSSAI, India Filings, https://www.indiafilings.com/learn/punishment-food-adulteration-fssai/.

[2] INDIA CONST. Schedule VII, List III, Entry 18.

[3] Section 31, Food Safety and Standards Act, 2006.

[4] Section 18, Food Safety and Standards Act, 2006.

[5] Section 43, Food Safety and Standards Act, 2006.

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Kashish Khattar is a fourth-year law student at Amity Law School, Delhi. This article revolves around Creation of Charges under the Companies Act, 2013. 

Introduction

Charge is defined in Section 2 (16) of the Companies Act, 2013 (“CA, 2013”) which basically says that charge can be –

(i) an interest or lien;

(ii) created on the property or assets of a company; and

(iii) any of its undertakings or both as security and includes a mortgage.

The provisions concerning charge are given under Chapter VI of the CA, 2013 and are spread through Section 77 to 87 and Charges are also governed by the Companies (Registration of Charges) Rules, 2014.

Charge is defined in the Transfer of Property Act, 1882 also where Section 100 says that an immovable property of one person is by act of parties or operation of law made security for the payment of money to another and the transaction does not amount to a mortgage, the latter person is said to have a charge on that particular property.

Typically, all large and small companies mainly depend upon share capital and borrowed capital for financing their projects. Borrowed capital for a company can be funds which are mainly raised by issuing debentures, which may be secured or unsecured or by obtaining assistance from a financial institution or banks. Provisions of Chapter VI also applies mutatis mutandis to One Person Company. Mutatis mutandis simply means that some changes will be made, but that will not affect the main point at issue.

There are some forms which are used in the e-filing of the Charge, the fee is paid in accordance with Annexure ‘B’ of Companies (Registration offices and fees) Rules, 2014. The list of forms is as follows:-

Particulars of Charges – Features of a Charge

The following details are required to be filed with the Registrar:

(a) date and description of the instrument creating charge;

(b) total amount secured by the charge;

(c) date of the resolution authorising the creation of the charge;

(d) general description of the property charged;

(e) a copy of the deed/instrument containing the charge duly certified or if there is no such deed, any other document evidencing the creation of the charge to be enclosed;

(f) list of the terms and conditions of the loan; and

(g) name and address of the charge holder.

Kinds of Charges

They are mainly of two kind –

1. Fixed charge: Which is identified with a specific and clear asset at the time of the creation of such charge. The company is not supposed to transfer this kind of a charge unless the charge holder is paid off his due for the same.
2. Floating charge: Floating or the circulating nature of properties of a company, like sundry debtors or stock in trade, can be deemed as floating charges. The nature of these kinds of charges keeps changing from time to time. The floating charge can convert into a fixed charge if there is a crystallisation of the company or the undertaking cease to be a going concern.

Types of charges to be registered

Section 77 of the CA, 2013 says that the company has to register all types of charges with the Registrar of Companies (“ROC”) within 30 days of the creation of that particular charge. It does not matter if the charge created is –

(i) within or outside India;

(ii) on its property or assets or any of its undertakings;

(iii) whether tangible or otherwise; and

(iv) situated in or outside India.

Section 77 in fact also says that the additional period can extend to 300 days (30 days in addition with 270 additional days). If the form is filed after 30 days of the usual registration period, it has to be paid with an additional fee. An application has to be filed in CHG- 10 from the CS (Company Secretary) or Director of the company that this late filing will not adversely affect any of the creditors involved in this.  

The duty of registration of the charge

According to Section 77, it is the duty of the company to register charge.

According to Section 78, if the company for any reason fails to register for the charge, the person in whose favour the charge is being created will form for a file of charge. The person has the right to recover the registration fee from the company. However, the person filing for the charge has to give a notice of 14 days to the company.

Modification of charge

Provisions regarding the modification are same as the creation of charge. After filing the form for the modification of charge, ROC will issue the certificate for modification of charge in form CHG-3.

Satisfaction of charge

A charge is typically created as the security for loans or debentures or as some kind of a security. If the amount of that particular loan is repaid or debentures have been fully paid or the primary purpose is fulfilled, there is no need of that charge. This is known as the satisfaction of charge. Section 82 states that form for the satisfaction of charge will be filed in form CHG-4.

Particular Charges where filing with the ROC is not required

1. Guarantee;
2. Due to the operation of law;
3. Hundi which is a Negotiable Instrument is not required to be registered; and
4. Pledge with an exception of companies being required to register pledge over shares.

Effect of registration of this charge

Register of Charge by ROC: According to Section 81, the ROC has to maintain a register of charges with regards to all the companies containing all the particulars regarding the charge. The register is open for inspection by any person on the payment of some prescribed fee.

Deemed Notice: Any person who is thinking of lending money or who has lent money to a company can know which of the company’s assets are charged and the extent of this charge.

Effect of non-registration of charge

According to Section 77, If the charge is not registered with the ROC, the charge will not be taken into account by the liquidator or any other creditor. This is only the case when the company is winding up, the company is obligated to repay the money even if the charge was not registered. The penalty for contravening any provision of the CA, 2013 are that the company shall be punishable with a fine which will not be less than Rs. 1 Lakh and may extend to Rs. 10 Lakhs and every officer shall be punishable with fine which will not be less than Rs. 25000 which may also extend to Rs. 1 Lakh or with an imprisonment of a term which may extend to six months or both.

Register of Charge by Company

1. Every company is expected to maintain at their registered office, a register of charge in the form CHG-7.
2. Copy of the instrument creating the charge has to be kept at the registered office of the company along with the register of charge.
3. The entry in the register has to be authenticated by a director or secretary of the company or any other authorised person.
4. The company has to maintain this register for the lifetime of the company and the instrument creating this charge is expected to be kept for a period of 8 years from the date of satisfaction of the charge by the company.
5. Inspection: Register of charge and copy of the instrument is open for inspection to the members and creditors at the registered office of the company without any fees. The register is also open to inspection by any other person on payment of the some prescribed fees. The register and copies of the instrument will be opened during business hours of the company.

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The Sale of Goods Act 1930 provides the definition for a Condition as – ““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” and for a Warranty as – “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”.[i]

A Condition forms the core of the contract i.e. considered as an essential to the main purpose of the contract. Therefore, the repercussion would be repudiation of the contract or claim for damages or both depending upon the breach and case.[ii] Breach of a Condition makes a contract voidadble on the part of non-defaulting party to the contract. However, a Warranty is treated as a collateral to the main purpose of a contract and therefore, the repercussions of breach of warranty by one of the parties would be only a claim for damages by the non-defaulting party.

A breach of Warranty by one of the parties does not make the contract a contract voidable and does not give any right to the non-defaulting party to repudiate the contract. The same position is further, clarified by section 59 of Sale of Goods Act, which provides that when there is a breach of warranty by the seller, this breach does not provide the buyer with the right to breach the contract, he may only sue the seller for breach of Warranty in diminution or extinction of the price. Whether a particular stipulation in the contract is a Condition or a Warranty, depends on the case to case.

A breach of warranty by one party cannot treated as one of breach of condition, however, a breach of a Condition by one of the parties to the contract can be treated as a breach of Warranty.  The Sale of Goods Act provides for the situations when a breach of a Condition by one of the parties can be treated as breach of warranty under a contract of sale of goods.[iii] Those situations being: –

1. When the buyer himself waives the Condition, which gives right to the buyer to repudiate the contract on breach of that particular stipulation; or
2. When the buyer treats the Condition as a Warranty and does not repudiate the contract on the basis of such breach; or
3. Where the contract is non-severable and the buyer has accepted either the whole goods or any part under the contract; or
4. Where the law itself excuses the fulfilment of a Condition.

EXPRESS AND IMPLIED CONDITONS AND WARRANTIES

Terms of a contract of sale of goods can be both express or implied. When a stipulation (Condition or Warranty) is expressively provided in the contract of sale of goods, it is considered as express stipulation. On the other hand, when the contract does not expressively provide for an express Condition or Warranty, however, due to the nature of the nature of the contract or intention of the party there is existence of a Condition or Warranty in the nature, it is known as implied Condition or Warranty. The Sale of Goods Act provides provisions for express and implied Conditions and Warranties.

IMPLIED CONDITIONS

Section 14 of the Sale of Goods Act states that, “an implied condition on the part of the seller that, 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”, which means that it is an implied condition that the seller of a good has the right to sell it or has the right to transfer the title of the property. Therefore, when the seller’s title to the property turns out to be defective or the seller does not have the right to transfer the property to the buyer, it gives the right to the buyer to repudiate the contract of sale of goods and to claim the money from the seller in addition to damages, if any. A seller can only sell or transfer the oppression of the property when he is the true owner of the property or has the right to transfer the property.

The Sale of Goods Act also provides for situations when goods are sold by description i.e. there is a contract of sell the goods by description given. In such situations, it is an implied condition that the goods sold to the buyer should match the description given about the goods. If the goods do not match with the description given, in such cases the buyer can repudiate the contract making the contract voidable at the option of buyer. The buyer cannot be compelled to accept the goods when the goods sold are not in accordance to the description provided.[iv]

Where goods are to be sold to the buyer as per the sample as well as the description given. However, if the goods sold to the buyer matches or are in accordance to the sample but are not in accordance with the description given, the buyer can repudiate the contract on the breach of such stipulation. In such situations, the necessity of goods sold to the buyer to be in accordance with the sample as well as description is treated as an implied condition and breach of the same gives the right to the buyer to repudiate the contract of sale of goods.[v]

When goods are sold under the contract of sale of goods, the Sale of Goods Act enumerates certain implied conditions, breach of any would provide the right to repudiate the contract. Following are the conditions: –

1. the bulk shall correspond with the sample in quality;
2. the buyer shall have a reasonable opportunity of comparing the bulk with the sample; and
3. the goods shall be free from any defect rendering the un-merchantable, which would not be apparent on reasonable examination of the sample. It can be concluded that this condition is applicable where the defects are latent as the section states that which (defects) could not be discoverable by an ordinary examination of the goods. The buyer can repudiate the contract if the defects are found after sometime due to potential existence of the defect but not presently evident.[vi]

Also, section 16 of the act mentions that there is no implied condition as to the quality or fitness of the goods for any particular purpose. However, section 16 also clarifies that the condition as to the reasonable fitness of goods for a particular purpose may be implied if the buyer had made known to the seller to select the best goods and the seller has ordinarily been dealing in those goods. This implied condition will also not apply if the goods have been sold under a trademark or a patent name. An implied condition as to quality or fitness for a particular purpose may be annexed by the usage of trade. In case of eatables, there an implied condition that the eatables shall be wholesome.

IMPLIED WARRANTIES

The Sale of Goods Act enumerates an implied Warranty that the buyer shall have complete possession of the goods sold to him and shall enjoy quite possession of the such goods. In case of any kind of disturbance, the buyer can sue the seller for the breach of Warranty and can claim damages arising out of such breach.

Section 14 of the Sale of Goods Act also provides for implied warranties. section 14 also provides for an implied warranty that the goods shall be free from any charge or encumbrance in favour of any third party, not declared or known to the buyer before or at the time the contract is entered into.

The Sale of Goods Act also makes provisions for an implied warranty as to quality or fitness for a particular may be annexed or attached by the usage of trade.[vii] If goods sold are of dangerous nature and as per the usage of trade the seller has to disclose the dangerous nature of goods and if the seller does not disclose, the buyer can sue the seller for breach of implied warranty.

THE RULE OF CAVEAT EMPTOR

Section 16 of the Sale of Goods Act states that, “subject to the provisions of this Act or any other law for the time being in force, there is not implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale”, brings the common law rule of Caveat Emptor, which means ‘let the buyer beware’.[viii] When the sellers display their goods in the open market, it is for the buyer to make a proper selection or choice of the goods. The buyer alone shall be responsible for checking the quality and suitability of goods before a purchase is made. The said rule owes its origin to the fact that in the early times most of the sales used to took place in the market.[ix]

However, the rule of caveat emptor has certain exceptions to it.

1. when a buyer brings the purpose of buying goods to the knowledge of the seller, relies on seller’s skill and goods are of a description which is in the course of seller’s business, it becomes the duty of the seller to deliver reasonably fit goods to the buyer;
2. Where the goods are sold by sample and the goods do not match with the sample;
3. Where the goods have been sold by both sample and description and the goods match with sample but do not match with the sample; and
4. When the goods have been sold by making some fraud or misrepresentation.

[i] S. 12, Sale of Goods Act, 1930.

[ii] S. 12(4), Sale of Goods Act, 1930.

[iii] S.13, Sale of Goods Act, 1930.

[iv] S. 15, Sale of Goods Act, 1930.

[v] S.15, Sale of Goods Act, 1930.

[vi] S. 17, Sale of Goods Act, 1930.

[vii] S. 16, Sale of Goods Act, 1930.

[viii] Commr Of Customs (Preventive) v. Aafloat Textiles (I) Pvt Ltd and Ors. (2009) 11 SCC 18.

[ix] Morley v. Attenborough, (1849) 3 Exch 511.

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A lawyer is never done learning.

We start from law schools and keep learning throughout our lives. We learn the laws, how to interpret them, how to use them in arguments, counter them and more. The law keeps getting updated or reinterpreted, so the lawyer can never afford to stop learning. They need to be on the top of the game.

I had no clue how little law or anything else I knew about practice of law when I graduated. 5 years later, I still get shocked by how much is there to learn!

The skill sets required for lawyers have also evolved with time. Initially, contract drafting was simple. But with time, the requirements for clients and parties have evolved. From sole proprietorship and partnerships to public companies, private companies and limited liability partnerships, the structure of companies have changed, and so have their duties and liabilities.

Even governance of these corporate bodies change year after year, and from simple gradually become extremely complex. That’s good news because it means lawyers will never run out of highly paid work. It is also bad news because you can’t just be the friendly simpleton law graduate – you have to continually upgrade your skills as a lawyer.

There is also a change in dispute resolutions. From litigation, parties are now opting for alternative dispute resolution like arbitration and mediation. This is mostly due to the fact that the in litigation disputes can get dragged out for years and can become quite expensive. In comparison, arbitration or mediation take less time for resolution, therefore cost much less. At least that is what conventional knowledge says.

Not necessarily though. In many cases, it is cheaper and faster to go to court than to go for arbitration. Top lawyers often have to decide, even at contract drafting stage, whether it will be better to choose arbitration, and if yes, then what kind of arbitration.

The essential skill sets for lawyers have seen a shift in recent times.

For instance, when I was in high school, I’d decided to be a litigation lawyer. By the time I had graduated law school, I was extensively exposed to the world of corporate laws. Up until my fourth year of law school, I had only interned with litigation lawyers in different forums. It was in the fourth year that I realised I need to gain some experience in a law firm or in-house role. Then I interned in a law firm dealing with copyright-related matters.

Eventually, I went on to work with an entertainment and media company where my work had little to do with what I had learnt and more with things I did not, like contract review, drafting, dispute resolution and more. There was a constant learning curve and if you did not meet it, then the job would not be done. So, I had to put in extra time just to learn the nuances of different kinds of contracts, their implications, restrictions, etc.

The more I delved into the work, the more learning was required, as I had to support and advice the various departments regarding the legal parameters in which they could operate and perform their day-to-day functions. This is a common phenomenon for in-house lawyers.

In case of lawyers working with law firms, they have different clients with different requirements and queries which necessitates them to be on top of their game.

However, many lawyers tend to think that all they need to know to be a good lawyer is the legal provision. What a grave and commonplace mistake that is.

There are skills that are equally if not more important to learn. Law you can still find in books, ask a senior or colleague about, and gradually learn by observing others. The skills I am talking about are much harder to learn.

This is why I insist that when our course R&D teams build online law courses, they must take into account how to teach these skills too. You will be half a lawyer if you don’t, and half a lawyer doesn’t do very well out there in the wilderness.

# Handling the client

One of the most important skills for a lawyer to learn is how to handle their client and extract the relevant information from them.  

Client management is acquired through hands-on experience. The more clients you handle, the more you learn about sifting through the information. In any setting, litigation or corporate, client briefing is quintessential.

You can also learn it from simulation exercises, which we extensively rely on.

If you don’t understand what is the client’s issues or requirements, you cannot provide the necessary remedies. For instance, one of my first client interaction was a few months into my first job. The client was seeking a divorce from her husband who was serving a prison sentence at the time for a fraud case. The client had come with her father and two-year-old son. Before the client could speak, the father of the client started telling us about the matter and what they wanted. There was a lot of unnecessary information, personal opinions and comments from his end.

As lawyers, we need to display a certain amount of empathy towards the client, but remain dispassionate in order to provide a legal solution to their problem. So, I gave the child some pen and paper to doodle and asked the client’s father to babysit him, while I took the client to another cubicle. The client then narrated her version of the issue. I had to ask questions which would help us build a case in her favour. The ambit of the questions was defined in such a manner.

Sometimes the clients give too much information, or too little. Sometimes they hide certain relevant facts which needs to be disclosed to the lawyer. There are times when the client has the relevant information, but has not divulged to the lawyer as they do not comprehend the importance of the same. The lawyers need to develop their skill to extract the relevant information by asking relevant questions while ensuring that their client does not get agitated or uncomfortable.  

The skill to handle the client and extract relevant information becomes indispensable in the long run.

Also, sometimes the client gives you an important piece of information which you completely fail to appreciate. That is also a grave danger.

Let us give you an example from our course on how we can teach such a skill. Let’s say you have been instructed by Adani to acquire a small robotics startup. They have given you a bunch of documents by email with respect to the deal so that you can get started. Now you have a call with the CEO before you commence work. What are the questions you are going to ask in the call? Prepare a list of questions.

Once you submit the list of questions, we will give you feedback. Did you miss any important angles? Are you asking too many irrelevant questions?

This brief example (the actual exercise is far more elaborate) is from our M&A, Institutional Finance and Investment Laws course.

# Contract Drafting

In this day and age, contract drafting is an essential skill set. Check out any job profile for a corporate law job. This will be among the most desired skill sets in a candidate. Litigators often make their ends meet thanks to contracts, and most of their high paid work may involve disputes over contracts.

Hence, all lawyers must love contracts and learn how to draft them.

Contract drafting is a skill which is generally not taught in law schools. We gain the theoretical knowledge about the components of contracts and its essentials. But, unless we start working with a law firm or a company, this skill set is not developed or even asked for.

In my initial years I was working in litigation. So my drafting skills were limited to applications, complaints, plaints, petitions, notices, etc. So when I decided that it was time to switch lanes into corporate, I realised that I need experience in contract drafting. To that end, I interned with a company for about four months and learnt how to draft various kinds of contracts. However, I can’t say it was either easy or very successful because even after 4 months I learned precisely little.

There are different kinds of contracts a lawyer must know how to draft, like shareholders agreement, licensing agreement, rent agreement, memorandum of understanding, software licensing agreement, distribution agreement, cloud service agreement, etc.

The idea was to bridge the gap in my learning. At that time, there were not many options to gain practical knowledge of contracts, other than doing hands-on work. This is why I am very excited about and strongly recommend this online contract drafting course available which focuses on the development of both theoretical and practical skills. I wish we had such a course when we were in college!

Click here for free materials on contract drafting course!

# Keeping up with the changing laws

The laws keep getting amended, reinterpreted, read into, struck down or repealed. Therefore, as lawyers, we must keep ourselves updated with the ongoing cases, their developments and impact on the client or company. This helps the lawyers to take necessary action with respect to strategy, advise and generally protecting the client’s interests.

For instance, recently in a matter between IPRS and Vodafone for infringement of copyright with respect musical compositions and lyrics of the songs within its repertoire, the Calcutta High Court held that, “A telecom company ideally would be required to obtain licenses now from IPRS as the plaintiff has rights over ‘music and lyrics’. Now that a society is in place to take care of the musicians, composers and lyricists, the rights of the members of the plaintiff are required to be protected”.

Vodafone claimed that they had agreements with the owners of sound recordings, therefore they didn’t require a separate license from IPRS. Vodafone has been directed by the court o deposit a sum of Rs. 2.5 crores to the credit of the suit.

This judgment will have a huge impact on owners of the sound recordings, the royalties payable to the relevant parties, i.e., producers, music composers, and lyricists. So as a media and entertainment lawyer will have to keep a close eye on the development of this case in order to strategise, advise and protect their clients accordingly. Now if you had done our course on Media and Entertainment Laws, you will not only learn about this but also learn how to keep yourself updated with the rapidly changing law with ease.

It is of the utmost importance for lawyers to keep themselves updated with respect to the ever-evolving laws.

We teach you in our courses how to build systems that keep you updated effortlessly. This should very much be part of training in law colleges, but unfortunately that does not happen. You face the challenge of learning to keep yourself updated only when you graduate, start practicing, and hit barriers that you do not like.

Don’t wait for that. The early bird catches the worm. Let us show you how you can stay updated on your chosen area of law, the area in which you wish to build serious expertise that will pay off in the legal marketplace.

# Developing relevant business understanding and domain knowledge

Just knowing the laws is not enough for the lawyers. They need to know and understand the business of their clients or company, too. You will see every successful commercial lawyer introducing themselves as “I am not just a lawyer, but I understand your business.” This is what matters today.

aws are numerous and no one lawyer knows all of them. They study the basics of a variety of laws, but they develop their expertise in a specific domain. You would not go to a neurosurgeon for a dental ailment or an oncologist for a mental health-related ailment. Similarly, a real estate lawyer should not be the first choice for a murder trial, or, a merger and acquisition lawyer for a divorce matter. This is not only because applicable legal provisions are different. This is also because industry knowledge matters.

A sophisticated client will go much deeper. Lawyers with experience of financing power projects will be preferred when new power projects are to be financed, just like those with extensive experience of financing aircrafts will be preferred for financing aircrafts. This is why experience matters massively in legal industry.

Somebody can read up all the laws that apply both to financing of aircrafts and power projects in a week. But it takes a long time to develop understanding of the power plant or distribution business, or aircraft leasing. These things make a huge difference. While the set of applicable laws may be exact same, the business fundamentals and practices are different, and a lawyer who don’t know enough will be lost, and intentionally misled by the other side.

How do you acquire such industry specific business knowledge? It is not exactly easy. This is in fact one of the hardest aspects of becoming a good lawyer. However, in all our courses, we will give you a good foundation with respect to this.

We help our students to develop their specialised domain knowledge through a series of weekly exercises as well as our material. While preparing our course material, we do not only include legal aspects, but there is a sharp focus on domain knowledge and business understanding. Each exercise addresses various aspects of doing business, and are not mere legal questions. This is how we force you to think like a business person again and again.

Let me give you some examples.

For a media lawyer or a technology lawyer, it is not sufficient to know the laws. They need to know the area of business they are working in, the common business parlance, industry practices, revenue models, common pitfalls, the technology itself and more. This is because they need to be able to identify, anticipate the requirements of the client or company and help them develop strategies in order to overcome the potential obstacles.

For instance, if a technology lawyer is working on a product licensing contract, he/she needs to understand the product, its utility, function, possible applications, potential risks, etc. in order to provide suitable measures in the licensing contract.

If the product is a music sharing application, then the both the media and technology lawyer must understand how the application works in the first place. Only then they will be able to gauge what kind of terms and conditions to put in place. A media lawyer might be more focused on nature of content, how the content is being used, and the rights and obligations thereof. Whereas, a technology lawyer would be more interested in the mode of content sharing, the functioning of the application, the manner in which the application can be possibly used, and more. Both lawyers need to sit with their marketing, sales, technology teams in order to understand the requirements of the company and users.

# Networking

This is one skill that I did not realise was of the utmost importance for any profession, especially lawyers.

I started out as the naive, idealistic fresher who did not want to take referrals or help from anyone to get the job. Soon I realised that a referral is merely to get your foot in the door. Then there are multiple rounds of interviews and performance on the job which is all on the candidate’s abilities.

Networking is an art. It is important to have a network of people and advisable to reach out to them from time to time. One cannot simply reach out to a person in the network and ask for a favour or a job. You must have a clear goal in mind before reaching out to someone.

What do you want from this person? Do you want a referral or a job itself? What kind of job? Do you have the necessary qualifications? Do you have the requisite skill sets? Do you have anything which sets you apart from the countless others who have reached out to this person so far? And then the most important question of all.

What is in it for the person in question? What do they gain from this interaction?

Before approaching someone from your network, the best shot is to do a little research and figure out where you can add value to the other person or the organisation. The point is not to go empty-handed. Go with a plan or a strategy which adds value to them. Make yourself stand out by making an offer of value in return for your ask.

This is why we ensure that each of our courses have some networking exercises towards the end. It’s not as difficult as it seems when you have proper guidance.

Go acquire and imbibe these essential skill sets for a successful legal career!

Good luck.

The post What are the skill sets you need to develop to succeed as a lawyer? appeared first on iPleaders.

In this article, Aashi Parekh discusses Cabotage Rules under the Merchant Shipping Act, 1958.

Introduction

India’s shipping industry is a necessary and vital component of its economy, playing an indispensable role in the country’s trade and commerce. As per the Ministry of Shipping, 95% of India’s trading by volume and 70% by value is moved by maritime transport. The industry acts as a primary mode of transport internationally of various essential commodities.

The shipping industry is handled by the Ministry of Shipping which is the apex body for formulation and administration of the rules and regulations related to shipping. It was formed in 2009 by bifurcating the erstwhile Ministry of Shipping, Road Transport and Highways into two independent bodies.

‘Cabotage’ refers to the transport of goods or passengers between two ports/places within the same country by a foreign shipping/transport operator. Cabotage laws are formulated by all international countries to protect their own national ships and promote local development. The Ministry of Shipping instituted the cabotage law to protect the domestic shipping industry in coastal transport.

Cabotage Rules under the Merchant Shipping Act, 1958

India’s cabotage policy is covered under the Merchant Shipping Act, 1958 (“Act”). Section 406 of the Act states that Indian ships and ships chartered by a citizen of India (or a company or cooperative society) may be operated locally only on grant of a license issued by the Director General.

Section 407 states that no ships other than an Indian ship or a ship chartered by a citizen of India (or a company or cooperative society) shall engage in the coastal trade of India except under a license granted by the Director General.

As per the law, only Indian flagged vessels or vessels chartered by Indian companies, operating under a license granted by the Director General of Shipping could carry cargo or passengers from one Indian port to another. Only Indian ships were allowed to function on local routes. This meant that foreign flagged vessels were permitted to operate only when Indian ships were unavailable.

Reasons for relaxation of the cabotage rules

While the cabotage rules were formulated to protect the Indian shipping industry and promote local ships, cabotage restrictions had hindered the transportation of goods via sea and resulted in escalation of costs. Indian ports were losing nearly INR 1,500 crores annually in business which led to a significant loss of revenue potential for Indian port operators.

The Shipping Secretary, Mr. Gopal Krishna, had stated that ‘relaxation shall increase transshipment from Indian ports, and it is expected that by the end of 2018, 10% of Indian cargo transshipped abroad shall be pulled back to Indian ports’.

Relaxation of Cabotage Law

1. EXIM (“Export-Import”) transshipment containers and empty containers

The Ministry of Shipping passed a General Order No. 1 of 2018 dated May 21, 2018 relaxing the cabotage rules for EXIM containers and empty containers. Highly competitive rates for international shipping, the lack of the ‘hub and spoke’ model in India, and various other reasons had resulted in 33% of Indian containers getting transshipped at foreign ports. All these circumstances eventually led to increase in costs for EXIM operations which led to the Indian shipping industry experiencing loss of revenue in terms of port and logistics charges and loss of foreign exchange to foreign ports.

As per the notification, the foreign flagged ships engaged in transportation of EXIM containers and empty containers are exempted from the application of sub-section (1) of Section 407 of the Act, subject to the following conditions:

• the container is consigned through a Bill of Lading to or from a foreign port for transhipment at an Indian port;
• the container is loaded or unloaded at an Indian port for transhipment purposes only; and
• the container has an adequate arrival or departure manifest.

2. Agriculture, horticulture, fisheries and animal husbandry commodities

The Ministry of Shipping passed a General Order No. 2 of 2018 dated May 22, 2018 relaxing the cabotage rules for coastal movement of agriculture, horticulture, fisheries and animal husbandry commodities.

Farmers rely solely on the shipping and logistics industry to store and transport products efficiently, including perishable products required in daily domestic consumption and export markets. As per the National Perspective Plan of the Sagarmala project, an estimate of potentially 9 million tonne per annum of food grains and processed food is moved by sea.⁵

As per the notification, the foreign flagged ships engaged in transportation of agriculture, horticulture, fisheries and animal husbandry commodities specified in Annexure 2 of the Indian Trade Classification (“ITC”), Harmonized System(“HS”), are exempted from the application of sub-section (1) of Section 407 of the Act, provided that such commodities contribute to at least 50% of the total cargo on board.

3. Fertilizers

Fertilizers are the seventh item to be freed from the chains of cabotage restrictions. The need to relax cabotage rules was brought up to provide the farmers with good quality fertilizers and seeds that would therein result in good quality crops and products leading to an increase in the farmers’ income and to provide flexibility and reliability in transportation within various parts of the country.

However, if a foreign flagged vessel is chartered by any Indian company, the ship can load any quantity of fertilizers for coastal movement and the restrictions shall not be applicable to such ships.

As per the notification, the foreign flagged ships engaged in transportation of fertilizers specified under the 2-digit code 31, of the ITC, HS are exempted from the application of sub-section (1) of Section 407 of the Act provided that such fertilizers contribute to at least 50% of the total cargo on board (as applicable only for cargo loaded at any Indian port for coastal movement.)

Relaxation of cabotage rules for transportation of fertilizers is a step forward in enabling the farmers to compete globally and to avail fertilizers in the required quantity and a cheaper cost. The Shipping Secretary is positive that due to such relaxation, by the end of 2018, at least 3 metric tonne of fertilizers shall be moved by coastal shipping.

Conditions applicable to relaxation

Relaxation of cabotage rules come at a cost and are applicable conditionally to those ports that transship at least half their container traffic. For applicability, such ports shall have to reach a mark of at least 50% transhipment. If such demand is not met annually, the relaxation for that port shall stand revoked. Once revoked, the same port shall not be reconsidered for 3 years subsequently. The relevant ports shall also be required to provide monthly container traffic data for monitoring to the Director General.

Consequences of relaxation

Relaxation of the rules will attract more containerized cargo. It will result in the growth of the shipping industry, allowing India to compete internationally with other countries in terms of international shipments. Foreign shipping companies shall be able to take cargo directly from one port to another which will allow them to accommodate more containers. It shall also result in bringing down the overall cost of domestic freight.

Due to such relaxation, Indian ports are now expected to witness a profit of INR 70 billion in 2018. EXIM containers transported by foreign flagged vessels for transshipment at Indian ports in August exceeded the empty containers moved on by foreign vessels providing sufficient indication that the policy shift has begun to benefit the industry.

Relaxation of such rules would encourage farmers to access a larger market, widen the range of goods and products and provide a greater distance for conducting domestic trade.

As per a study under the Sagarmala project, development in the rules shall save expenses up to INR 800-900 crores on transportation of 6-7 million tonne per annum of fertilizers via ships.⁴

Cabotage relaxation shall also help in acquiring a 5-7% cost saving for the cotton and textile industry since it will help export goods from domestic ports itself.

Conclusion

This modification in the rules is a huge step forward in reduction of costs of coastal transportation of various products and commodities including cotton, dairy products, fruits and many other necessities. This change in policy shall in lead to greater import-export, provide more business to shipping companies, increase revenue in terms of port and logistics charges and shall be a huge boost of coastal transportation in India leading to an overall rise in the entire shipping industry.

There is a long way to go in providing various goods to the general population without burning their pockets but relaxation of cabotage rules has been a positive leap in that direction. While the main objective of the cabotage rules are to protect the domestic shipping industry in coastal transport, a change in the global economic sector has increased the demand of transport within India. Changes in the policy have provided an opportunity for two-way cargo movement that has the potential of reducing the cost of transportation, increasing cargo volume and facilitating further investment in the fleet therein improving the state of the shipping industry.

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In this article, Swastik Sharma discusses How the decriminalisation of homosexuality impacts the LGBT community in India.

The expression “personal liberty” in Article 21 of the Constitution is of the widest amplitude,[1] and includes “right to privacy” as an implicit right in the concept of individual autonomy and liberty.[2]

It was indeed the case of the “parties against section 377” in the three major battles against its retention[3] that section 377 of the IPC, 1860 (377) violated the right to privacy of the LGBT when it threatened private sexual relations of consenting adults with penalization. Right to privacy could not have been meaningful as long as it was being abridged by a fear of law enforcement agencies. Sexual relations and preferences, being most private and intimate, are inalienable components of the right to life. 377 left the LGBT community unable to experience the private sexual pleasure which was allowed to heterosexuals.

“Parties in favour of retention of Section 377” in Suresh Kumar Koushal v Naz Foundation[4] (Suresh Kumar) did not accept that 377 violated the Right to Privacy and even if it did, it can be so curtailed by following due process of law.[5] It is interesting to note that in Naz Foundation v Govt of NCT of Delhi[6] (Naz Foundation) “parties in favour of retention of Section 377” had conceded that “Right to Respect for Private and Family Life” was encroached. They tried to justify such abridgement in the interest of public safety, healthy environment and protection of health and morals.

Constitutional Morality overrides Public Morality

To understand whether Fundamental Rights under article 21 and 19 can be curtailed under the garb of “morality”, we have to first understand whether the morality in question is “societal morality” or “constitutional morality” and only then we can answer whether enforcement of “morality” is a legitimate state interest.

“Societal/Public Morality” is the set of ethics which the public at one point of time may subjectively perceive as the principles of right and wrong, whereas “Constitutional Morality” is derived from constitutional values enshrined under the preamble, Part III and Part IV of the Constitution. In a tussle between the two, “Constitutional Morality” always prevails. It is very interesting to note in this regard that the Apex Court in Suresh Kumar justified 377 through the lens of societal morality and leaned on majoritarian perception whereas the issue, in actuality, needed to be debated upon in the backdrop of constitutional morality. Further, morality and criminality are not co-extensive. Recognition of an act as ‘sin’ is not punishable on Earth by courts. Criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy.[7]

Where the Delhi High Court in Naz Foundation relying upon many foreign judgements held that 377 grossly violated right to privacy and liberty embodied in article 21 insofar as it criminalized consensual sexual acts between adults in private, the Apex Court in Suresh Kumar Koushal relying upon several of its older decisions,[8] held that though foreign judgements are informative and shed considerable light on various aspects of right to privacy, still they cannot be applied blindfolded for deciding the constitutionality of an Indian Legislation. Ironically, the Court in Navtej Singh Johar v Union of India[9] (Navtej Singh) relies upon a plethora of foreign judgements to overrule Suresh Kumar.

Hence, in Navtej Singh, the Supreme Court inter-alia held that 377, insofar as it criminalizes consensual sexual acts between adults in private, abridges both human dignity as well as the fundamental right to privacy and choice. The right to privacy takes within its sweep the right of every individual including that of the LGBT community to express their choices in terms of sexual inclination without the fear of persecution or criminal prosecution. To criminalise homosexuals only on account of their sexual orientation and would run against the principles of constitutional morality.

The emergence of a new right: Right to ‘sexual privacy’

The seeds for the emergence of the right to ‘sexual privacy’ were sown in Naz Foundation when the Court held that the way in which one gives expression to one’s sexuality is at the core of this area of private intimacy. If in expressing one’s sexuality, one acts consensually and without harming the other, invasion of that precinct will be a breach of privacy.

In KS Puttaswamy v Union of India[10], the Supreme Court declared sexual orientation as an essential and innate facet of privacy. This new right was fully recognized in Navtej Singh where the court widened the scope of the right to privacy by incorporating in it a right to ‘sexual privacy’. The court held that the exercise of the natural and inalienable right to privacy entails allowing an individual the right to a self-determined sexual orientation. Emanating from the inalienable right to privacy, the right to sexual privacy must be granted the sanctity of a natural right, and be protected under the Constitution as fundamental to liberty and as a soul mate of dignity.

Conclusion

Even if it be accepted that 377 was only kept to protect children from sexual abuses and fill lacunae in rape law, its retention would unnecessary because the purpose for its retention died after enactment of Protection of Children from Sexual Offences Act, 2012 and Criminal Law (Amendment) Act, 2013. Further, what was always demanded was to interpret 377 differently, i.e., to decriminalize private consensual sex between adults, not to declare the whole of 377 unconstitutional.

The LGBT community was not only denied “moral-full citizenship” but also reduced to a status of “unapprehended felons” as Section 377 had no other purpose than to criminalise conduct which failed to conform to the moral or religious views of a section of society. Hence, the law, as it stands today, is that for the “compelling state interest” test,[11] the enforcement of “public morality” cannot amount to a “compelling state interest” to justify invasion of privacy of adult homosexuals engaged in consensual sex in private without intending to cause harm to each other or others, though it could be a “compelling state interest” to regulate by law the area of non-consensual sex.

It was easily anticipatable that Suresh Kumar would soon be overruled after landmark judgements delivered in cases of KS Puttaswamy v Union of India,[12] Common Cause v. Union of India[13] and NALSA v Union of India[14], raised the right to privacy to the pedestal of a fundamental right and where the plight of the LGBT community was also recognized. This shows that the Apex Court is indeed moving towards a progressive realization of rights to realize the constitutional vision of equal rights in consonance with the current demands and situations.

As the final arbiter of the Constitution, the Apex Court had to keep in view the necessities of the needy and the weaker sections. Hence, as the law stands today, the right to privacy includes within its ambit the right to engage in consensual same-sex sexual relations in private and moral views of society cannot lead to the criminalization of such acts. The right to privacy is not only the “right to be let alone”, but also extends to the right to spatial privacy, and decisional privacy or privacy of choice. It extends to the right to make fundamental personal choices, including those relating to intimate sexual conduct, without unwarranted State interference.

The Personal Laws, as well as the Secular Law, only provide for marriages between heterosexual couples, and not same-sex couples. Adoption rights have also, only been provided to heterosexual couples. Even though the Apex Court has provided the LGBT community relief to some extent, still a major mending needs to be done in Civil Laws by the Parliament, to truly enrich the LGBT community with their rights.

[1] Maneka Gandhi v Union of India (1978) 1 SCC 248.

[2] Gobind v State of MP (1975) 2 SCC 148.

[3] Naz Foundation v Govt of NCT of Delhi 2009 SCC OnLine Del 1762; Suresh Kumar Koushal v Naz Foundation (2014) 1 SCC 1; Navtej Singh Johar v Union of India 2018 SCC OnLine SC 1350.

[4] (2014) 1 SCC 1.

[5] AK Gopalan v State of Madras AIR 1950 SC 27; RC Cooper v Union of India (1970) 1 SCC 248.

[6] 2009 SCC OnLine Del 1762.

[7] Khushboo v Kanniammal (2010) 5 SCC 600.

[8] Jagmohan Singh v State of UP (1973) 1 SCC 20; State of Madras v VG Row AIR 1952 SC 196; Surendra Pal v Saraswati Arora (1974) 2 SCC 600.

[9] 2018 SCC OnLine SC 1350.

[10] KS Puttaswamy v Union of India (2017) 10 SCC 1.

[11] Gobind v State of MP (1975) 2 SCC 148.

[12] (2017) 10 SCC 1.

[13] (2018) 5 SCC 1.

[14] (2014) 5 SCC 438.

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In this article, Aastha Jain discusses the need for effective corporate governance and biggest challenges to corporate governance in India.

Corporate Governance and its Challenges

You must be aware of the infamous Satyam case which is considered to be India’s largest corporate frauds where Satyam Computer founder R. Ramalinga Raju resigned after admitting to the fact that they had been overstating their profits and cooking their books since a long period of time. This is an example of bad corporate governance due to which frauds like this happen and in many cases, the culprits walk out scot-free. With the help of effective corporate governance, a company can excel in all aspects as it provides an assurance that management is acting in the best interest of corporation, thereby contributing to business prosperity with the help of openness and accountability.

What is the meaning of Corporate Governance?

Corporate governance is the mechanisms, processes, and relations by which corporations are controlled and directed. It stipulates the structures and principles which identify the distribution of rights and responsibilities among different participants in the corporation (such as the board of directors, managers, shareholders, creditors, auditors, regulators, and other stakeholders) and includes the rules and procedures for making decisions in corporate affairs. Simply put it is the code of conduct in business for the good management of the companies.

What are the basic principles of corporate governance?

Initially, the concept of corporate governance was introduced to stop the entrepreneurs and owners from doing unjust acts against the company. The core concept on why corporate governance was introduced still stays the same but some modifications have been made to include all the ways a company should represent itself in order to foster the trust of investors and other stakeholders. The key principles of corporate governance differ according to the country, regulator and stock exchange. However, most of the codes of governance include several same features.

• Independent leadership: having an independent leadership is vital for the compliance of the principles of corporate governance such as an independent chairperson or an independent director. The director who invites friends and family for a seat at the board runs the risk of nepotism and prejudice. For this reason SEBI had introduced guidelines to the corporates emphasizing the need for independent leadership.
• Transparency: one of the most vital objectives of corporate governance is considered transparency for the organizations to develop a business procedure so that all of the company’s transactions remain traceable. The other aspect includes having a clear and easy to understand company policies.
• Accountability: the principle of accountability states that the company must be accountable to everyone who is being affected by the decisions made by the company.
• Fairness: The Company undertakes to protect shareholders’ rights and ensure equal treatment of shareholders. There should be an effective redressal mechanism established by the Board of Directors to protect the rights of the shareholders.
• Rule of law: the company must abide by the legal frameworks established by the regulatory bodies such as Securities and Exchange Board of India (SEBI) in case of India. There are penal provisions imposed by these regulatory bodies for the violation of rules and guidelines set by them.

Corporate governance framework in India

There are many acts with provisions relating to corporate governance in India. These provisions are set in accordance with the international standards. They are:

1. The Companies Act, 2013 – it has provisions regarding the constituency of the board, general meetings, audit committees, board processes etc.
2. SEBI (Securities Exchange Board of India) – there are many guidelines regarding the corporate governance which are mandatory for the companies to follow and violation of any guidelines attracts penalties.
3. ICAI (Institute of Chartered Accountants of India) – there are various accounting standards related to corporate governance such as disclosure of financial statements set by ICAI.
4. ICSI ( Institute of Company Secretaries of India) – there are various secretarial standards on meeting of the board of directors, general meetings etc. set by ICSI which have to be followed by the companies.
5. Standard listing agreement of stock – this is regarded as the most important framework for corporate governance which is applicable to the listed companies.

Clause 49 of the listing agreement

The clause 49 of the listing agreement to the Indian stock exchange that came into effect from 31st December 2005 has been formulated to widen the scope of corporate governance by setting provisions for in all listed companies. Generally, the term ‘Clause 49’ is used which refers to clause number 49 of the Listing Agreement between a company and the stock exchanges on which it is listed (the Listing Agreement is identical for all Indian stock exchanges, including the NSE and BSE). This clause is a recent addition to the Listing Agreement and was inserted as late as 2000 as a result of the recommendations made by the Kumarmangalam Birla Committee on Corporate Governance constituted by the Securities Exchange Board of India (SEBI) in 1999. The provisions under clause 49 are :

• At least 50% of non-executive members
• For a company with an executive chairman, at least half of the board should be independent directors, else at least one-third. It would be necessary for chief executives and chief financial officers to establish and maintain internal controls and implement remediation and risk mitigation towards deficiencies in internal controls, among others.
• Clause VI (ii) of Clause 49 requires all companies to submit a quarterly compliance report to the stock exchange in the prescribed form. The clause also requires that there be a separate section on corporate governance in the annual report with a detailed compliance report.
• A company is also required to obtain a certificate either from auditors or practicing company secretaries regarding compliance of conditions as stipulated and annex the same to the director’s report.
• The clause mandates the composition of an audit committee; one of the directors is required to be “financially literate”.
• It is mandatory for all listed companies to comply with the clause by 31 December 2005

The real intention of clause 49 when it was first added was to introduce some basic corporate governance practices in Indian companies which brought a number of key changes in the protocols followed by the companies. It specified the minimum number of independent directors required on the board of a company, the setting up of an Audit Committee, and a Shareholders’ Grievance committee, among others, were made compulsory and so was the Management’s Discussion and Analysis (MD&A) section. It was mandatory to include a report on corporate governance in the annual report and also disclose the fees paid to the non-executive directors. There was also a restriction set on the number of committees a director could serve on.

Voluntary regulations, 2009

At the end of the first India Corporate Week in December 2009, the Ministry of Corporate Affairs issued new Corporate Governance Voluntary Guidelines and new Corporate Social Responsibility Voluntary Guidelines which covered the topics of:

• Board of directors
• Responsibilities of the board
• The audit committee of the board
• Auditors
• Secretarial audit
• The institution of the mechanism of the whistleblower policy

Major challenges

Although, there exists many guidelines about corporate governance but still many issues are arising about the compliance. The major challenges to effective corporate governance are:

• Non-coverage of unlisted corporates

This is one of the major hindrance caused to effective corporate governance as the applicability of rules and regulations are restricted to the listed entities only as per the clause 49 of the listing agreement which leads to small and mid-sized firms to perform activities which are legal in nature but are not ethical.

• Disclosure of off-balance sheet transactions

There are many transactions which cannot be disclosed in the balance sheet and even if they can be they cannot be displayed in monetary terms. What transactions are to be disclosed and how to be disclosed is entirely on the discretion of management. Corporate governance has a basic principle of transparency but it fails to provide a provision for its compliance.

• Family owned business

In India, the majority of the businesses are family owned which means there is no provision regarding the dilution of powers. Ranging from directors to employees all key positions are held by family members. Also, the company’s and family’s relationship is very ambiguous in reference to that the assets of the company and the family are not separated legally.

• Multiplicity of regulations

In India there are many regulatory bodies such as Companies act 2013, Securities and Exchange Board of India (SEBI), Reserve Bank of India, Insurance Regulatory Development Authority, etc. and they have no coordination with each other which leads to multiple provisions for a single type of event/transaction. This creates confusion and leads to chaos. This duplicity provides companies a loophole to escape from responsibility. These regulatory bodies are reactive but not proactive which means they only take action when there is a scam.

• Corporate social responsibility

It is mandatory for companies to allocate a minimum of 2% of the profits in the last 3 years for CSR. The small and the mid-sized firms do not have the resources to allocate separate funds to CSR from its profit.

• Challenge of existing practices

Some of the existing corporate governance practices are faulty in themselves and have many loopholes in them such as:

• The incompetence of the board of directors to understand the type of risk they are taking.
• Lack of independent directors
• Presence of corporate culture which does not promote asking questions
• Problems in whistleblowing- whistleblowing was introduced to put the guilty into limelight but are often wrong in their accusations and can cause serious harm to the person wrongly accused.
• Problems in transparency

Management often argues that everything cannot be disclosed in a business as this information can be used by the competitors. However how much enough or what it should be disclosed and what shouldn’t be is with the discretion of the management who often abuse this power.

Overcoming these challenges

• Investment in Compliance cost

In the initial stages, the compliance cost might seem huge but it will prove to be a huge investment in the long run. Simplifying the unambiguous regulations might promote the smooth functioning of the company and also encourage corporate governance as the compliance cost will reduce.

• Changing regulations with time

In this time of rapid growth where the technology changes day by day it is important to upgrade the regulations of corporate governance in accordance with the changing industrial and economic climate of the country. Adhering to the old provisions might cause repercussions in the company.

• Regulations for unlisted companies

The unlisted companies should also be brought under the purview of corporate governance for healthy competition and better competition goals. Standard and incentives are required for the mid-sized new entrants of the capital market. Right now there are only few provisions for the unlisted companies which lets them walk out scot free on the subject of corporate governance.

• Competence of independent directors

Directors should have integrity and independence of thought; the courage to express their independent thoughts. They should possess a grasp of the realities of business operations and an understanding of business and financial language. The skill set of the independent directors has to match to the company in order for effective corporate governance.

• Strictness in regulators vigilance

The role of regulatory bodies should not just be reactive but proactive too. They shouldn’t just react after the scam but also supervise and regulate the functions of the company to deviate risks which could be avoided. Precautionary measures have to be taken in order to avoid violation of any guidelines established by the regulatory bodies.

• Stringent rules for transparency

Transparency is a huge part of corporate governance but there isn’t any clear regulation as to what should be disclosed and what shouldn’t be. Providing clear rules on transparency will make compliance of corporate governance easier and effective. Strengthening the disclosure strategy can prove to be the stepping stone to effective corporate governance in India.

The current scenario in India

On paper, India has the most stringent rules and regulations in the world related to corporate governance but in reality, the situation is quite different. It has been observed that promoters have considerable leeway to siphon corporate resources from the minority shareholders with the help of skewed contracts. This way promoters have a way of having pecuniary benefits for their personal use.
There are independent directors to protect the interests of the minority shareholders but as was seen in the Tata case, promoters have an influence over the directors such that a powerful and connected man like Nusli Wadia was dismissed from the board.

Another case would be of ICICI, where a conflict of interest was observed where one was with the partnership of promoter of Videocon group and Deepak Kochhar, husband of the chief executive officer of ICICI Bank. Regardless, of whether the loan, its terms or the extension were preferential, it was a huge conflict of interest due to the presence of Chanda Kochhar on the board, now the facts here are not clear as it was said that she was not the chairman of the committee. Still, speculations were raised on what did they do in order to protect the interest of the shareholders and investors but this situation did raise a question on the compliance of corporate governance on their part. The guidelines laid under corporate governance should be such that these situations can be avoided.

Recent developments

Capital market regulator Securities and Exchange Board of India (Sebi) has approved recommendations to the corporate governance framework for listed companies. The new measures are based on recommendations made by a 25-member committee headed by Uday Kotak, executive vice chairman and managing director of Kotak Mahindra Bank. The panel had suggested 81 key changes and new measures to improve the governance standards at India Inc. out of which 40 recommendations have been adopted without any modifications. Some of them are:

• Reduction in the maximum number of listed entity directorships from 10 to 8 by April 01, 2019 and to 7 by April 1, 2020
• Expanding the eligibility criteria for independent directors
• Enhanced role of the audit committee, nomination and remuneration committee and risk management committee
• Disclosures of auditor credentials, audit fee, reasons for the resignation of auditors
• Disclosure of utilization of funds from QIP/preferential issue
• Enhanced obligations on the listed entities with respect to subsidiaries
• Secretarial Audit to be mandatory for listed entities and their material unlisted subsidiaries
• Mandatory disclosure of consolidated quarterly results with effect from FY20

Conclusion

Corporate governance in developing countries is still in its infancy stage but many laws and amendments are being made in order to improve the effectiveness of corporate governance. There is no doubt that corporate governance if implemented properly, has ample benefits for stakeholders, shareholders, management employees, customers and community at large.

The post Need for Effective Corporate Governance and Its Challenges appeared first on iPleaders.

The Express Entry system is the fastest way to move to Canada as a permanent resident. The immigration management program is entirely online system, and makes the Canadian immigration process enormously efficient for capable candidates from across the globe. Most Canada PR candidates submit their application under Express Entry is processed in six months or less. To ensure you have the best potential chance of being chosen for immigration to Canada, you can retain the services of a Toronto Immigration Lawyer who can assist you take the essential steps before and during your application to develop your chances of success.

Canadian Express Entry Functioning

The Canadian Express Entry program has been implemented in January 2015 for managing immigration applications for numerous of the country’s economic immigrant programs, including Canadian Experience Class, Federal Skilled Worker and Federal Skilled Trades. People who desire to migrate to Canada for living and working can officially express their interest in becoming a permanent resident of Canada by creating an Express Entry profile. They have to meet the criteria for at least one of these immigration programs under Express Entry. Once added to the Express Entry pool, applicants are scored according to the program’s point-based Comprehensive Ranking System (CRS), and the CRS score will determine the applicant’s rank within the pool. Then, applicants with the highest scores will be invited by the Citizenship and Immigration Canada (CIC) to apply to immigrate to Canada as permanent residents.

A candidate’s Express Entry profile are accessed and ranked by the program’s CRS according to main predictors of economic success, factoring in their education, work experience, skills, language abilities, and a range of other elements that are recognized to help immigrants flourish in Canada. Eligible employers as well as Provinces and territories in Canada, can also directly take on potential immigrants from the Express Entry pool, and applicants who receive an eligible job offer or a provincial nomination are rewarded with a significant number of points which give their Express Entry score a major boost.

Confirming a Provincial Nomination within Express Entry

If a territory or province of Canada has already nominated you under their Express Entry program, you must insert the nomination to your Express Entry profile in order to receive the additional CRS points. To do so, follow these instructions.

1. Visit your Express Entry profile
2. Then, go to “Application Details” option and after that select the  “Nomination and Selection” section
3. Then, it asks if you have a Canada PNP nomination, modify your answer to “yes”
4. Then, it shows you a drop-down menu, use the menu to select the province or territory that has nominated you
5. Submit your updated profile
6. After that, directly contact the province, outside of Express Entry, and give them details about your Job Seeker Validation Code and Express Entry profile number
7. The Canadian province will then use this information to confirm the Canada PNP nomination with Immigration, Refugees and Citizenship Canada (IRCC). Once completed, A MyCIC message is delivered to you regarding the nomination.
8. Accept it, and you will be immediately rewarded 600 Express Entry points on your CRS immigration score. You have only 30 days to accept a PNP nomination in Express Entry before it formally expires.

Once you accept the Canadian Province Nominee Program nomination, a confirmation letter in PDF format in your MyCIC account is delivered.  Moreover, a copy of your nomination certificate will also be mailed to you in your email id. But, please be aware that provincial nominations attained through the conventional paper-based process, called base nominations, cannot be processed under Express Entry.

Canadian Immigration 2018

The Federal Government of Canada has declared their 2019 Canadian immigration rules. In 2019, the Canadian Government has planned to accept 340,000 Canadian permanent residents, the greater part of which will be chosen from economic immigration programs. Citizenship and Immigration Canada is aiming to approve 565,000 applicants and additional family members under economic class immigration programs such as the Quebec Skilled Worker, Canada Express Entry, and the different Canadian Provincial Nominee Programs. You can visit the official Government of Canada Express Entry immigration website for more information about immigrating to Canada through the Express Entry.

How many People are allowed to Apply for Express Entry?

There is no limit on the number of potential immigrants who can submit Express Entry Canada applications. As a consequence, there is a different range of occupations, experience and qualifications for companies and provinces to select from to fill their labor market shortages. Besides it, the pool will contain all candidates with high-quality skills and experiences, rather than just the applicants who submitted their applications without meeting the eligibility criteria. This being said, the number of folks given an Invitation to apply for Canadian permanent residency are subjected to the Annual Immigration Levels Plan which set out a basic series of admissions for the Express Entry Program.

The Express Entry program is not only designed to immigrating overseas people, but also to satisfy the need of the Canadian Labor market, a positive Labor Market Impact Assessment (LMIA) or nomination from a province can give an applicant extra points that may enable them to grade high enough to meet the criteria for an Invitation to Apply. This also means that any deficiencies found in the Canadian employment market can be evaluated and addressed in a small space of time, which could be very useful to Canada’s economy.

Citizenship and Immigration authority has committed to process the most Express Entry PR applications within 6 months. It means that number of Express Entry applicants will be able to enter the job market and begin contributing to the Canadian economy in a very little space of time.

Invitation to Apply for Permanent Residency in Canada

If an Express Entry Canada immigration applicant is chosen out of the pool during an Express Entry draw, then he or she will be given an Invitation to Apply for Canada Permanent Residency. Once received an ITA, candidates have 90 days to submit their application for Canadian permanent residency.

Immigration Law Office of Ronen Kurzfeld

Address: 110 Sheppard Avenue East, suite 630

City: Toronto, ON, M2N 6Y8, Canada

Phone: (647) 792-8824

Fax: (416) 229-0042

Email:ronen@immigrationway.com

The post How Canadian Express Entry System Works appeared first on iPleaders.

Every student who is studying in Canada might have one goal “Earn while learning”. Most of the pupils from developing countries pay high tuition fees and substantial living costs, which are quite difficult for them to manage. Immigration Lawyer Toronto will discuss the available work opportunities in Canada for overseas students.

First of all, Let us shed light on the work permit legitimacy for international students in Canadian universities. International pupils in the country may work on campus or off campus; else they can choose to work as an intern, if they desire to make money while studying in order to support their studies according to the Citizenship and Immigration Canada (CIC) department. Being an international student, you can choose any of the following work opportunities in Canada as recommended by the CIC:

Work Off Campus

 International students can opt to work off campus to gain work experience while carrying out their studies. At present, working off campus in Canada is fairly easy for global students as the CIC has started the Off-Campus Work Permit Program (OCWPP) from June 1, 2014, which allows them to work outside the universities without a work permit. However earlier, students was not get allowed and they had to get a work permit from CIC before going off campus to work which was involved complicated paperwork.

 As per CIC, Eligibility criteria for working off campus

• A person must be full-time student and have a valid study permit
• A person is enrolled at a designated learning institute for a post-secondary studies or a  secondary level vocational program in Quebec
• A person is studying an academic, professional or training vocational program of at least 6 months in duration which will get them a diploma, degree, or certificate.

If you meet the criteria, your study permit will allow you to:

• In a regular academic session, you can work off-campus up to 20 hours per week and
• During spring break or winter / summer holidays you can work off-campus full-time.

Here are a few instances of places where global students can work off campus:

• Restaurants as cooks, servers, hosts
• Corporations in their field of study as interns, coordinators  or research assistants
• Banks as customer service representatives or tellers
• Stores as cashiers, customer service representatives, designers of store displays, etc.

Work On Campus

A very suitable mode of earning while studying, working on campus is the ideal alternative for a pupil who has spare time between classes. Eligibility criteria for working on campus are following as;

• You must be a full-time student and
• You must have a valid study permit.

Here are a few of the immense places where pupils can work on campus:

• Bookstores in Campus
• Universities’ Administrative offices -as interns, assistants or receptionists
• Stores and restaurants of universities
• University libraries
• University Coffee shops

Work as a Co-op Student or Intern

For some academic streams, work experience is part of the syllabus. In such cases, it is quite easy for international students to search work opportunities in Canada, because the CIC permits them to go for a Co-operative Education or paid internship program, for which they will need to apply for both study permit and work permit. A Co-operative Education is a type of internship program that allows college students to get career training while working with professionals in their major streams of study and get paid.

Eligibility criteria for a work permit for the Co-op program or paid internship are following as:

• Pupils must have a valid study permit.
• Their service must be a part of their educational program, and ought to be certified by a letter from the concerned educational official.

Overseas students will not be entitled to work as co-op student or intern if they are studying French or English as a second language.

 Now, let’s check the available work opportunities in Canada for overseas students who are studying in the following Canadian Universities:

• McGill University – Work Study Program

The McGill University offers work Study Program for international students who are looking for work opportunities in Canada. Under this program, students can do clerical, technical, research, library or other jobs on campus or in the McGill-affiliated organizations and hospitals.

Students must meet the following requirements;

• Students must have a valid study permit and be registered in a full-time degree program
• They must have maintained a satisfactory academic record
• University of Toronto – Work Study Program:

University of Toronto Work Study program provides students some opportunity to expand their skills, knowledge and experience through paid work on campus.

Eligibility Criteria

• Work Study program is open for all regular domestic and international students who are studying at least 40% course load.
• International pupils must have a Social Insurance Number (SIN) provided by Service Canada to get paid.

Students are permitted to work a maximum of twelve hours for each week, at a wage fee of $11.25 for each hour plus 4% vacation pay.

• University of British Columbia – Work Study Program

The UBC work study program provides entitled students with the chance to expand their workplace skills, search potential career paths, and obtain mentoring through work experiences. They can attain all this whilst earning extra income to help finance their education.

Eligibility

• To be qualified for the Work Study Program, UBC pupils should maintain at least of 18 credits (9 per term).
• Overseas students must have a valid study permit and a valid Social Insurance Number card.

University of Alberta: Global students can search work opportunities in Canada, while studying at the University of Alberta.  There are a lot of ways pupils can earn some money while studying at the University of Alberta.  University of Alberta allows students to work both on campus and off campus.

Alberta Cooperative Work Programs: The School of Business and the Faculty of Engineering at University of Alberta (UAlberta) offers cooperative work programs for overseas students. In such programs, students can obtain precious work experience in their field of study and meanwhile they can earn to support their expenses.

 Ronen Kurzfeld Immigration Lawyer

Email: info@immigrationlawyer-toronto.ca

Phone: (647)490-2033

Toll FREE: 1(888)539-1008

Address:

110 Sheppard Ave E #630

Toronto, ON M2N 6Y8

The post Job Opportunities for Overseas Students in Canada appeared first on iPleaders.

This aritcle is written by team, The Diversity Project.

The NUJS Gender and Sexuality Forum was started in 2014, as a response to the Suresh Kumar Koushal v. Naz Foundation judgment of the Supreme Court. Conceived to create an inclusive space in our University, the Forum was created with the vision that one day all students of NUJS would become a part of it.

This year, with the help of many, the Forum inaugurated The Diversity Project, a platform aimed at providing a space for subdued voices to be heard, and to encourage dialogue about power dynamics that affect inclusivity within and outside the campus. This online platform was created to provide a space to openly talk about a broad range of issues, including sexuality, class, and gender norms, by allowing personal accounts of these experiences.

Today, the Diversity Project blog offers an option to submit anonymously which ensures that authors do not feel pressurised to maintain a politically correct stance while writing. This was designed to prevent censorship which led to authors losing the essence of what they wanted to say, or worse, be afraid to say anything at all owing to the social repercussions that follow. While allowing anonymous submissions, the curators make sure that no hate speech or defamatory matter is published, thus ensuring that the critiques are not vindictive.

Since its genesis, the blog has received many submissions from people within and outside the campus, wanting to express their dissatisfaction with the status quo in law schools and the gendered power structures within it or commenting on general issues that plague campuses across the country.

The blog has become a safe space where a diverse range of opinions, cutting across caste, class and gender barriers have found their voice. Nuances of deeply entrenched misogyny in the context of college campuses have been addressed by a number of articles on the blog – from toxic masculinity in the Boys Hostel, to calling out a friend who has been accused of sexual harassment. This has led to a certain level of introspection among the readers wherein existing behaviours are beginning to be questioned. Other pieces include explorations of sexualities, discussions on class-based divides, and patriarchy in the Girls Hostel.

Apart from the personalised narratives, the blog also offers legal articles on a variety of topics including international and domestic law.

If you want to write about your experiences in law school, whether positive or otherwise, then please do write to us at genderandsexualityforum@gmail.com. In case you’d like it to be an anonymous post, please upload your file here. Although you will be required to fill an email id and username, Dropbox DOES NOT verify it, and therefore, inaccurate information may be filled.

It is as diverse as it names itself to be, so do write to us about your experiences!  

The post The NUJS Gender and Sexuality Forum – The Diversity Project appeared first on iPleaders.

What did you want to be when you grew up?

Doctor? Scientist? Artist? Writer? Actor?

I wanted to be an archaeologist for the longest time as kid. I had some weird fascination with the ancient civilisations like the Mesopotamia, ancient Egypt, the Harappan civilization of the Indus Valley.

But then I grew up to realise that there is not much potential for that in our country and the money wasn’t great either. I was quite disappointed. Archaeological Survey of India hired junior archaeologists for 10-15,000 per head. It was just another government job. I had to let go of my childhood dream and find something else. For a long time, I did not know what that was.

Then soon enough, by the tenth grade I had to choose my education stream- science, or arts, or commerce. It was time to figure out what were my interests and skills were, in order to zero in on a career. I was good at writing, solving puzzles, loved reading, listening to old-school music, sketching, having reasoned arguments. But none of these seemed to lead to a lucrative career for life.

Hesitantly enough, I chose commerce. Initially I struggled with it, but then I found the best tutor and soon, I turned out to be quite good at it.

Although I loved commerce subjects and was quite good at it, for some reason, it did not feel right. You know the gnawing feeling at the back of the head about something being off? I felt that even while I took commerce in the eleventh grade. That used to be the ideal time for choosing one’s profession.

Then one fine day, I went with a friend from the arts stream, for a session on law as a career. I was simply tagging along as I had nothing better to do.

The session did not do much for me at the time. But slowly, I figured out my other interests coming forth. I was more involved in what rights do we have as a citizen and as an individual. I used to argue a lot. But then, I started supporting them with facts or information. The results were amazing. People were either left convinced or fuming. I loved it!

The power of pure logic and words was exhilarating, for someone like me. That is when I decided that I wanted to be litigation lawyer. I wanted to help educate people about their rights and was willing to fight for them!

So I went full throttle at it. I did not clear the entrance exams right after my 12th boards, as I had not prepared for them. So I had to enroll into one of the best colleges offering B.Com. Therefore,  I had to convince my father as to why it is not a bad idea to let go of a lucrative career as a chartered accountant, and become a lawyer instead. It was tough. But eventually he relented. I pursued a full-time graduation course in a morning college for a year with attendance, tuition, tests and assignments, while preparing for law entrance examinations.

After an arduous year, I had managed getting through multiple law schools and I picked one of them. Everything seemed on track. Life was good. I had found my calling!

After five years of law schools, I was out in the real world, trying to find my footing. I was not adequately prepared for it.

I made a ton of decisions which even if seemed right at the time, were bad decisions. But, I think I am tougher than that now. Because after each mistake, I picked myself up, dusted off, and marched ahead.

The worst part was when my dream changed yet again. I pursued litigation for a year, but I guess, I was simply not cut-out for it. So I had to find another dream job. But, now I was a qualified lawyer, so things were different. I was not a student trying to figure things out. I had to up my game, get an edge over others, if I wanted to be a lawyer.

Nowadays, there are online law courses available which bridge the gap in formal legal education and the real world practices. But back then, there were no courses which would teach you the theoretical and practical aspects of an area of law. So it was all on you to figure it out.

I did not know which area of law I was more suited for. It could be real estate law, cyber law, mergers and acquisition law, business laws, arbitration, tax laws, or labour laws. What I did know was that I needed to pick up something and develop my skill set and expertise so that I can one day be counted amongst the best in that area.

After all, in law you can’t ever know everything. The profession is so vast, and roles are so different, no matter how brilliant you are one life time is simply too short to learn everything and do everything. Also, specialized lawyers tend to earn far more than generalists.

The one thing I knew beyond doubt was that  if I wanted a career in corporate law, I had to learn contract drafting. So I quit my litigation job and started interning with a company. I interned there for four months and learned quite a bit, but it was barely scratching the surface. There an entire mountain left to climb.

But, continuing with the trend of moving forward, I went ahead and landed my first major job!

Working with one of the oldest music labels of the country for almost four years, was a wonderful learning experience. I got to be part of in-house litigation team as they marched into the digital media and all that it entailed. My dream had reshaped into that of a media and entertainment lawyer.

Who would have thought that!

My journey as a media and entertainment lawyer was good. I learnt a lot about in-house work as a lawyer. I realised the importance of understanding the product, business and the company, over and above knowing the laws involved. But being part of the  litigation team, I realised that, I had not learnt the most important skill of the in-house lawyer- contract drafting and negotiation!

I was thinking about changing my cities, so I was looking for jobs in the same field. I came across a job post which was a perfect leap for me. It was with Anand and Anand & Khimani! The firm is known for its exceptional and extensive work in the media and entertainment industry and is based in the heart of the industry- Mumbai! I applied for the position and started preparing for it. Soon enough the day of interview arrived and I was warmly greeted by the partner on Skype. I answered a few questions, fumbled on a few. Then I was questioned on my experience of contract drafting. This is where it all went to hell.

I can’t say up to this point I never drafted any agreements. I indeed drafted quite a few, albeit in order to assist my mother who had to take care of our family business after my father’s death.I did draft some employment agreements, rent agreement, partnership agreement, memorandum of understanding and the likes. It was a tedious and unnecessarily prolonged process of learning on my own. But the point is I knew how to draft some kinds of agreements. However, I certainly did not know how to draft commercial agreements for law firm!

There is an online contract drafting course available, which teaches the nuances of the subject and its practical applications. But I did not know about that at the time. Needless to say, I did not hear back from the law firm. I wish I could blame them, but the skill of contract drafting is essential for every lawyer.

I was disappointed, but I picked myself, dusted off and moved ahead.

It was around this time, I had reclaimed my passion for writing and was writing articles for a friend’s blog. It was a wonderful way of letting my opinions on film, politics, social issues and the world, be out there.

Then one day at work, I saw a post looking for writers to work from Goa for the same company whose courses I’d taken a while back. I had just completed three and half years in my company and was looking to acquire new skill sets. The available position was in the marketing team, and I knew absolutely nothing about it. So I was both apprehensive and excited at the same time.  

Then I pursued a dream, I’d never really considered before. I became a writer!

I have been pursuing this new-found dream for about four months now, and am enjoying it.

Will this be my final dream, my true calling? I honestly don’t know for sure.

What I do know for sure is this- we all have certain skills and the ability to acquire new skills. As long as that is in place, we can go forth and keep reshaping our dreams, until we finally get it. There might be some blunders, mishaps or obstacles on the way, but that should not stop us from our goals- learning and self-improvement.

If it does seem like you cannot achieve your dreams, what should you do? I have had my dreams reshaped multiple times. What I learnt from this is that, we can either sit and lament the loss of the dreams or, we can learn to pick ourselves up, dust off, and march ahead!

Which one will you choose ?

The post What do you do when it seems that you can’t achieve your dreams? appeared first on iPleaders.

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

I am in a conundrum. I am not able to write anything else until I write about this. This has been occupying too much brainspace. In my experience, whenever I tried to raise these issues on social, I have faced extreme hostility from women who said that by raising these issues I am belittling a movement and reducing the space for women to speak freely. I expect nothing less after publication of this article. Still, I firmly believe in what I am going to say and I will say it even if it personally costs me.

The #metoo movement started with much gusto and like many others, I was excited and welcomed it. Finally people are speaking up, talking about sexual harassment and this is an opportunity to redraw the lines of social engagement. Horrible things that have been normalised for ages are finally being questioned by the common people. The media attention, people talking about what is right and what is wrong, this itself is a great opportunity to set things right.

I have a very fair idea about the amount of sexual harassment both women and men face, because starting from 2012 I have been writing on the subject of sexual harassment and other rights of women extensively on iPleaders blog, helped a few companies to comply with sexual harassment laws, held some sensitization talks and contributed towards launching a course on sexual harassment as well as some compliance tools that has been used by leading corporations.

I have faced sexual harassment myself, at workplace as well as elsewhere, and have faced a false complaint of “outraging the modesty of a woman”, a charge that was fabricated to get me to withdraw a case I filed. I stand vindicated in that case as the perpetrators later confessed to their crimes and pleaded guilty in court. More on that later.

But most of all, I run a helpline for people who are victims of sexual blackmail and revenge porn (apart from another helpline where I give free advice to employees whose dues remain unpaid). I probably hear and deal with more women who are victims of sexual harassment than anybody else I know. And I do it for free, because I know I make a difference in the lives of few people, and that’s what gives me most satisfaction even on an otherwise bad day.

Over time, even my wife has began to help me with the helpline. Despite our very busy schedules, it is not uncommon for us to wake up in the middle of the night to pick up the call of a sobbing victim and guide them as to what they need to do.

I know the systemic oppression women have faced in workplace, in their families, in the society, in politics. I am absolutely with the #metoo movement for the great impact it is having and it looks like real change is possible for the first time in my lifetime.

However, I am pained to say that I see many women taking it in a very problematic direction. Finding your voice on social media and building political pressure is very different from media trial and a sentence without hearing. There is widespread clamour by some women that since due process takes too long, every time a person is accused on social media of sexual impropriety or assault  (where the line is drawn with respect to what comes within ambit of this in often not clear or agreed upon), but such person must be immediately ostracized socially by all else and fired from their jobs. If they hold positions of power, they must step down.

Indeed many cases we have seen in last month of so merit such treatment. There must be outrage about failures of the justice system, we must protest when police or the lawmakers don’t do their job, we must challenge power structures that protect sex offenders.

However, this doesn’t mean we can throw caution to the wind and just take every allegation on face value. In India, we have had a great example of what can happen if you create problematic privileges in favour of women.

A strong law was introduced in form on Section 498A of the Indian Penal Code, for the offence of beating up one’s wife. The provision, read with some judgments issued over the years, meant that if a wife made a complaint to police stating that she has been beaten up by her husband or in-laws, then without any further enquiry police with arrest all the accused persons and put them behind the bar. They would then wait until a court grants them bail.

Initially this law was hailed as turning point for married women. However, soon some other problems cropped up. Some women were filing 498A complaints simply in order to get their way by armtwisting their husband and in-laws – in terms of divorce, extorting huge sums of alimony, or anything else. Pay up or I pull the trigger and you go to jail.

Note that police did not look into how credible the charges of violence were. They just mechanically acted on the complaint and arrested whoever was named.

This became a routine thing and soon many lawyers were advising all women going through divorce to use this law to get a bigger alimony, monetary settlement and other favourable terms.

The situation became so ridiculous, that after a few years 498A cases were not taken seriously anymore. Police tries to avoid these cases because they have seen too many false cases. And Supreme Court itself had to issue certain safeguards that took away the teeth of this law. Accused do not get arrested automatically after filing of a complaint anymore. Hence, the filing of cases under this section has also since plummeted.

Recently, my mother was trying to help a poor woman she knows to file a 498A case as she was beaten black and blue every week. In this case the woman just wanted the man to stay away from her. It was terribly hard to get police to take the case seriously.

This is what happens when you create privileges where wrongdoing can be covered up. Just like powerful men covered up their sexual misconduct over the years thanks to their privilege, Indian law created a privilege for women to send their husbands and inlaws to jail, and while it lasted, it was a nightmare. It had to be dismantled within years.

It is often said that false complaints are few and far between. Some people have even invented a 2% figure that they tomtom when one expresses concerns about false complaints. If you ask them for a source or explanation, they will quickly avoid the subject altogether.

I want you to think of the hazard of false complaints, and I invite you to think of how to counter it, so that the very powerful movement of metoo does not suffer the terrible fate of Section 498A. Because if precaution is not taken, and it people supporting this movement do not recognize this pitfall, it is certainly going to go downhill from here.

After few courageous voices kickstart the movement and keep it alive, it will be taken over by opportunists of all sorts trying to serve whatever agenda they may have.

India, by the way, is the land of false complaints. If you argue with the police on the street corner too much, and they are threatened by you, trust me you will find out in one hour how easy it is to file a false case, and how hard it is to defend it. In non-bailable cases, you go to jail fast, and prove your innocence in court later.

This is a country where business competitors file false cases against each other to get the slightest leverage.

If the government finds an activist too troublesome, the answer is to send her to jail by filing a false case. Sure she will eventually come out and the case will fail. We know that. Then we can file another such case with trumped up charges. Sounds familiar?

Why just the government, even I can file a bunch of false cases against you, and it will cost you a fortune and years before you make it out of it and clear your name. And allegations of sexual offences are the worst, because of the stigma they carry with them.

In India, if you file any FIR against anyone, and if they retain the service of a competent lawyer, they will be immediately advised to file something called a cross- FIR. This is an FIR filed against you, maybe with completely false information, just to be used as a negotiation chip later.

Just see the situation this delhi guy faced. He had an argument on the street corner with a woman about whether he was blocking the road. He has witnesses who agree that he didn’t harass the woman. The woman went and put our a facebook post, that went viral, claiming that he was harassing her. This was followed by a police complaint. While the guy is struggling to keep jobs as he gets fired again and again when employers find out when he has to attend court in such a case, the woman has gone to Canada to pursue her studies and do not ever appear in any hearing. If he had a good lawyer, he would have filed his own version of made up offences against her. And things would be very different.

In my own life, I have seen just too many false complaints to even remember all. I am going to tell you about some. Then decide if you think our society needs some safeguards against media trial or not.

First, let me tell you about a false complaint I faced.

In 2013, I had recently moved to Delhi. One sunday afternoon after a quick nap I woke up to see that I have got some 30 missed calls from my mother. I called her. She told me in a panicked state that some local mafia people beat up my father and threw him in a drain. I few back to Kolkata to see what I can do. My parents did not want to file a complaint as they were very worried about these people. They were new in the area, having just built a house with all their life savings.

I decided to go and confront these people. An argument led to a fistfight, which led to them coming to my house later, breaking open the door, breaking windows and then eventually attacking me with iron rods when I stepped outside. I snatched a rod from one of them and fought back but they managed to land a couple of blows on me with iron rods. Those injuries would take months to heal, but at the time I felt no pain.

The police arrived soon, and by that time I was bloody, my mother had captured some of this on a video and police tried to sort it out by mediating between us. I agreed to not press charges on the spot just to let things calm down. But in the evening, I went and filed a police complaint, got medical check up done, submitted watertight evidence that makes things very clear.

Then the other party came with a lawyer and filed a complaint too. I got a copy of this a couple of days later. It stated that I tried to commit dacoity in the house of these people, and charged at them with a knife and for good measure, that I outraged the modesty of their house-maid. There was not further explanation as to what I did, but just that.

I had never ever met this house maid. I had no idea who she is. However, I was quite sure she will give a statement to police that I outraged her modesty!

Funnily, just couple of weeks earlier, in the wake of Nirbhaya rape case, outraging the modesty of a woman was made a non-bailable offence. So there was a good chance I would be arrested, although the police officer in charge said that he did not believe the ridiculous story that a lawyer came from Delhi to commit robbery at his neighbor’s house or outrage the modesty of a house maid and he will not arrest me.

He did not arrest the other side either. Eventually we all got bail. After some time, as the direction of the case became clear, the other side simply went to court and admitted to the charges brought against them. They were asked to pay some fine and that was it. Since they admitted to their guilt, a story inconsistent with their original complaint, the case against me has no legs to stand on. It is now a matter of time for it to be disposed off.

However, I had to visit Kolkata couple of times a year no matter where I was to attend court proceedings against me, and had to bankroll my defence.

Now imagine if it was not a police station, not a courthouse, but facebook. A poor housemaid posts my picture stating how I outraged her modesty. What could happen?

Will I lose my job? Will I be mobbed or lynched? Will my family be harassed? Will a mob attack my house? How will I get to ever clear my name? Many possibilities come to mind, and none seem far fetched.

In the real court I stood a chance.

Do I stand a chance in the mobocracy of facebook, whatsapp and god knows what new social media is on its way?

From many other false cases I have seen, another major case stands out. At that time I was running ClikLawyer, and lawyers empanelled with this online platform helped a well known startup with employment law issues. A lady had absconded from work with office laptop as well as data. She was refusing to return the same. Our lawyer sent her a legal notice telling her if she doesn’t return the laptop, the company will initiate various proceedings against her. She agreed to return it. However, somebody at the company pushed her too much and asked her to pay compensation to the company for her abrupt leaving. The girl went to the police station and submitted a complaint alleging sexual harassment, probably under advice of a policeman she knew or a lawyer she retained.

Soon, the company had to pay this girl substantial money, let the laptop go and just amicably settle because they didn’t want the bad press, and certainly didn’t want to waste their time and resources fighting a false case.

It is that easy for a woman to file a false complaint and totally get away with it. Sure if you do it against a powerful man, such as a politician or baba, you may face backlash. But for the rest of lesser mortals, you will face no such problems. Just file a false case, arm twist us and take what you can. And you will completely get away with it.

Only recently people have started to file cross-complaints alleging extortion but its very hard to prove or even to get a complaint lodged.

Very recently, with help of a friend, I discovered a racket where a woman with help of men were trying to extort money from men on dating websites by threatening to file false complaints against them. Please read about it if you have the time.

So don’t tell me baseless assumptions about how rare false complaints are. Sure, I don’t have any data, and neither do you. And you have no reason to assume that it is a really small number.

As soon as money gets involved, there will be tons and tons of people doing it.

So yes, there has to be safeguards against #metoo, just like every powerful weapon has functions that ensure safety. Missiles have abort functions. Guns have safety catch. #metoo needs safeguards too.

Just because I have pointed out this problem, please don’t pile on me asking for a solution, alternatives etc.

Perhaps, having some common sense and not acting out of blind rage will help. The principles of natural justice, which are very common sensical too, also will not hurt. These principles suggest that “hear both sides” and “nobody should be a judge of their own cause”. You can’t have an accuser become the judge jury and executioner, her voice reinforced by social media echo chambers, where the accused stands no chance of defending himself.

A woman told me this is The Purge (like the eponymous hollywood horror movie), and there will be collateral damages. I want to live in a just society, and while I do not wish women to suffer in hands of predators, I equally detest it when a man is falsely accused and given no chance to defend himself. One doesn’t make the other OK or acceptable. Nobody should become a collateral damage. If we turn a blind eye to injustice, it becomes normalized.

Let the truth prevail, and there must be a fair mechanism to determine what is the truth.  

This is the first article I wrote in a series I want to write about other problematic aspects of metoo and associated media trial. Next topic: Consent and its interpretation. Have you ever been shocked when you took initiative to do something you thought was completely appropriate, and that you had consent, only to be told otherwise later? Happened to me a few times. These episodes made me very cautious about love and sex. But those stories are for tomorrow.

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In this article, Baibhav Panda discusses How the SC’s Aadhaar judgement affects the business entities.

INTRODUCTION

The Aadhaar Judgement is one of those judgements which will affect the whole economy in a long run and it ran for a marathon 38 days making it the second longest hearing after the Keshavananda Bharati case. On 26th September 2018, a five-judge constitution bench headed by the Chief Justice Dipak Mishra and Justice A.K Sikri, Justice  D.Y Chandrachud, Justice A.M Khanwilkar, Justice Ashok Bhushan upheld the Aadhaar scheme by 4:1 majority.

The majority judgement was delivered by Justice A.K Sikri on behalf of Chief Justice Mishra, Justice Khanwilkar and himself. Justice Bhushan delivered a separate concurring judgement and Justice Chandrachud delivered the sole dissenting judgement.

IMPORTANT TAKEAWAYS FROM THE FINAL JUDGMENT

1. The court held that the Aadhaar Act is way more effective than the other identity proofs and it provides uniqueness to an individual and eliminates the chances of duplication of the identity.
2. The Act satisfies the test of proportionality as the following conditions are satisfied:
   • (a) legitimate goal
   • (b) rational nexus between the measures undertaken for furtherance of achievement of goal
   • (c) absence of alternative less invasive measures (d) absence of disproportionate impact on holder.
3. In reference to the questions raised by the petitioners regarding safeguarding of fundamental right of privacy the apex court struck down certain important provisions of the Aadhaar Act and the regulations and related legislations namely:

• RETENTION AND ARCHIVAL OF RECORDS: Regulation 27(1) of the Authentication Regulations requires the UIDAI to retain the “authentication transactional data” (which also includes the meta data) for a period of 5 years thereafter. The part which permitted the archival for 5 years was declared to be unconstitutional. No data to be retained beyond 6 months.
• STORAGE OF META DATA: Regulation 26 of the Authentication Regulations which enabled the UIDAI to maintain and store the data related to authentication of the Aadhaar number of an individual. Maintenance of data has been held as impermissible as the scope of this provision is very wide and requires necessary amendments.
• NO ACCESS TO PRIVATE ENTITIES: Section 57 of the Act permitted the private entities to establish the identity of an individual for authentication. There was already a growing concern that the private entities getting access to the sensitive information of the individuals which could be misused and manipulated for their personal benefits. The Supreme Court held that the portion which enabled the body corporates and individuals to seek authentication has been held as unconstitutional.
• AADHAAR NOT MANDATORY FOR LINKING WITH SIM: The mandatory linking of Aadhaar with mobile SIM has been held as unconstitutional in reference to the circular issued by the TRAI on 23rd March 2017. It didn’t have the legal backing of authority of law and section 57 being struck down.
• AADHAAR NOT MANDATORY FOR LINKING WITH BANK ACCOUNT: The mandatory linking of Aadhaar with has been held has unconstitutional as it didn’t satisfy the conditions set out in the proportionality test. The reason being that on the failure to do so by an individual would result in restricting the access to bank account i.e depriving a person of property under article 300A.
• NON-APPLICABILITY OF ACT TO MINORS: Enrollment of minor under the Aadhaar scheme would now require the consent of the parents and such minors would also have the option of exiting out of the scheme once they attain majority.
• NOT MANDATORY FOR NEET, EGC AND CBSE: The Supreme Court observed that the requirement of NEET, EGC and CBSE and school admissions was not within the purview of section 7 of the Act and held that Aadhaar would not be mandatory for these things.
• STRIKING DOWN PROVISIONS OF SECTION 33: Section 33 basically speaks about disclosure of information in certain cases. Section 33(1) is about disclosure of information in the event of court order. This sub section has been struck down by the court with a clarification that the individual whose information has to be disclosed shall be afforded an opportunity of hearing. Section 33(2) which provided for disclosure of information in the interest of national security has been struck down.
• MANDATORY LINKING FOR IT FILING: The Supreme Court upheld the validity of section 139AA of Income Tax Act,1961 making it mandatory for linking Aadhaar with PAN for income tax filing.

Click here

DISSENTING VIEWS OF JUSTICE D.Y CHANDRACHUD

In a dissenting judgement Justice D.Y Chandrachud declared that the Aadhaar Act in its entirety was unconstitutional in the way it was passed.

Introduction of Aadhaar Act as a money bill in the Rajya Sabha also bypassed the constitutional authority of the Rajya Sabha. The passage of the Act in Rajya Sabha is an abuse of the constitutional process. He ruled that the Aadhaar Act was unconstitutional o the ground that it failed to meet the necessary requirements set out for qualification as a money bill in article 110(1).

Lastly, he said that the failure of authentication would leave a citizen nowhere as they would be denied to claim the benefits that they are otherwise entitled to automatically  nullifying the objective of the Act.

EFFECT OF THE JUDGEMENT ON THE BUSINESS ENTITIES

The landmark judgements delivered by the apex Court in the past have affected the country as collective conscious and this judgement will also do the same. These type of judgements have long term implications in the truest sense.

For the people who had a linked their Mobile SIM and bank account with the Aadhaar Card it is win for them as they were earlier insisted by the telecom operators, banks and payment companies to do the same.

With the scrapping of section 57 of the Aadhaar Act the apex Court has done the right thing as earlier the provisions of this section permitted the body corporates to establish the identity of an individual by authentication. It is a major blow for the companies especially the payment companies, Fintech companies selling products like mutual funds, loans and the telecom giants who relied on Aadhaar based KYC( know your customer) which was all about electronic authentication infrastructure without the use of paper based documents.

No doubt the e-KYC infrastructure was effective but there was always a growing concern what if the sensitive information is used by the private entities for the wrong purposes. In light of this concern also scrapping of section 57 appears to be valid.

After the court struck off a portion of section 57 it is the private entities who are in a jittery as there is no more e-KYC. It was paperless and cost effective for these companies to do the verification for authentication say in less than 5 minutes. Now they will have to buckle up and get back to square one and use the paper based KYC procedure which is actually time consuming and more costly. the paper based KYC being a costly alternative means that the companies have to suck up more money from investor’s capital. In other words the judgement will affect the cost of doing business for these companies.

The companies have to bring changes in the business models to comply with the order of the court but for now first they have to delete all the data that they have collected from the individuals for verifying the identity.

The judgement doesn’t even spare the payment apps which were launched by the government last year to promote digital payments in India without the use of debit and credit cards. The first app called Bharat Interface for Money (BHIM)  is a merchant app to receive digital payments from customers and the second one called Aadhaar Enabled Payment System (AePS) which allowed withdrawal or transfer of funds and check on account balances using biometric authentication through micro ATM’s. The Aadhaar linking here becomes optional and voluntary now.

CONCLUSION

The Aadhaar judgement is very well balanced judgement keeping in view the interests of the government by upholding its constitutional validity and safeguarding the fundamental rights of the citizens of the country. The implications in short term is somewhere predictable but it will be interesting to see what judgement brings in the the long term and what will be the implications.

The right of privacy has been upheld as fundamental right in the Puttaswamy case which has pushed for implementation of data protection laws in the country and there is an urgent need for robust data protection law for securing the sensitive data of the citizens. In July this year a nine member committee of experts headed by justice B.N Saikrishna submitted a report to the Ministry of Electronics and Information Technology (MeitY) along with a Personal Data Protection Bill,2018 (Draft).

It will be interesting to see if the draft bill is enacted in the near future what changes it will bring in the data protection regime in a long run.

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This article is written by Sumith Suresh Bhat.

The on-going tussle between Iran and the United States of America has gained prominence all over the world and countries are closely watching even the smallest of developments. The US has slapped a series of sanctions against Iran, the latest of which will come into effect from 4 November 2018. Iran, obviously taking a hit economically, has tried its best to overcome the sanctions using all possible means. One such effort by Iran was made when it challenged the sanctions imposed by the US before the highest judicial authority in the world, the International Court of Justice (ICJ).

On 8 May 2018, the US imposed sanctions on Iran, which barred financial transactions, trade in metals, importing of Iran-made carpets and foodstuffs and export of commercial passenger aircraft and parts to Iran. The 8 May order of the US also imposed sanctions on any state that violated the orders and supplied the ‘barred’ goods and services to Iran. It also threatened to impose additional sanctions in November, which would affect Iran’s oil trade in the region, on which a large part of its economy depends.

Iran challenged the 8 May sanctions before the ICJ on 16 July 2018 alleging that the sanctions violated the Treaty of Amity, Economic Relations, and Consular Rights between Iran and the US (Treaty of Amity), which the two nations entered into when their relationship was far less volatile in 1955. The US defended itself by claiming that the matters stated in the case were outside the scope of the Treaty of Amity. Now, just as in the case of domestic litigation, cases before the ICJ tend to take several years before any meaningful decision is obtained. However, the ICJ also takes another cue from domestic litigation, wherein it has the right to hear and pass orders on interim applications called ‘applications for provisional measures’. Iran filed such an application for provisional measures seeking intervention of the ICJ by ordering the US to put a hold on its sanctions until final disposal of the case.

This is where the Jadhav case came into the picture

When the hearing of the case began at the ICJ, the Court first decided to look into Iran’s application for provisional measures. The preliminary issue that propped up in the application was whether the Court has prima facie jurisdiction to pass an order on the application for provisional measures. This is where the Jadhav case came into the picture. In the Jadhav case between India and Pakistan, India had also sought provisional measures in requesting the ICJ to order Pakistan to suspend Kulbhushan Jadhav’s execution. In that case, the ICJ held that it may indicate provisional measures only if the provisions relied on by India, appeared prima facie, to afford a basis on which the Court’s jurisdiction could be founded. However, the ICJ also noted that it did not need to satisfy itself in a definitive manner that it had jurisdiction as regards the merits of the case. Based on this decision of the ICJ, Iran only had to ensure that the provisions it relied on appeared prima facie to afford jurisdiction to the Court regarding the merits of the case. Iran did so by citing Article XXI, paragraph 2 of the Treaty of of Amity which stated as follows:

“Any dispute between the High Contracting Parties as to the interpretation or application of  the  resent  Treaty,  not  satisfactorily  adjusted  by  diplomacy,  shall  be submitted  to  the  International  Court  of  Justice,  unless  the  High  Contracting  Parties agree to settlement by some other pacific means.”

The text in the Article within the Treaty of Amity was clear. The Court was pleased to accept that the US and Iran had both agreed that there was a dispute in question and it concerned the “interpretation or application” of the Treaty of Amity. Therefore, the court held that it did appear to possess prima facie jurisdiction with regard to the case.

A second instance in the same order where the Jadhav case was cited by the Court was when it was deciding whether there was a need to pass an order for provisional measures. In the Jadhav case, the ICJ had held that provisional measures could be indicated where there was a risk of irreparable prejudice being caused to the rights which are subject to the judicial proceedings. In the Jadhav case, the Court observed that such irreparable prejudice would be caused to India’s consular rights under the Vienna Convention on Consular Relations if Kulbhushan Jadhav was executed. The US for its part argued that there was no risk of irreparable prejudice and blamed any domestic impact as a result of the sanctions on the Iranian Government. It also argued that economic risks are reparable in nature and hence the sanctions could in no way cause irreparable prejudice. In the present case between Iran and the US, the Court held that the sanctions imposed by the US have the potential to endanger civil aviation and life in Iran since Iran was dependent on spare parts and services from the US for its aviation sector and relied on imported medicines and foodstuffs for its people. Therefore, the Court held entailed irreparable prejudice to Iran’s rights. The Court also observed that there was a sense of urgency as the US has threatened to impose additional sanctions in November 2018.

The ICJ went on to unanimously pronounce in its orders that the US shall remove any impediments arising from its 8 May sanctions to the free exportation of medicines, medical devices, foodstuffs, agricultural commodities as well as spare parts, equipment and associate services necessary for the safety of civil aviation to the Islamic Republic of Iran. It is a different matter altogether that the US completely disregarded the order of the ICJ and immediately withdrew from the Treaty of Amity, thereby nullifying the very basis on which Iran had made its case. However, the case has shown the importance of the observations in the Jadhav case and how it will continue to be used in international jurisprudence in future. Here’s the link to the Court’s judgment.

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This Article is written by Lakshay Kewalramani and can be contacted via email at lakshay.kramani@gmail.com. The article discusses the Role of Lawyers in Project Finance Deal.

Project Finance Deal

Project finance involves the development and financing of infrastructure and spans various industries and locations around the world. Infrastructure Projects in India are sometimes owned and managed by the Government or a Government undertaking. Given the massive investments required in infrastructure, which plays a pivotal role in economic development, there is now broad consensus that private sector participation in this activity must be encouraged for better and faster projects. Nowadays most Infrastructure projects are in the nature of private-public partnership. Example: – An electricity generation project which private sector builds, owns, operates for a certain period of time (called the concession period) and finally transfers back to Government (this concept is called BOOT).

Typical Project Pattern

• Projects are implemented in a Special Purpose Vehicle (SPV) which is distinct corporate entity.
• Project Sponsors take an equity stake in the SPV like for example 15-30% of the project cost
• SPV enters into contractual arrangements with project Contractors, off-takers, operators, and Government and project lenders. For example In Indian road projects, where private enterprise would construct, operate and maintain the road during the concession Period and would earn an assured annuity from NHAI.

It is therefore important to have experienced legal advisors who will advise the SPV and the sponsors on appropriate risk allocation and ensure that the legal and structural framework is compiled.

Key Project Parties

• Project Sponsors – To subscribe a significant proportion of equity shares in the project vehicle.

• Project Vehicle – Selects and appoints all the project contractors, negotiates and executes the contracts, raises the financing, supervises constructions and commissioning, and operates the project either directly or through an Operations and Maintenance (O&M) Contractor.

• Lendors – To provide debt to finance the constructions of the project. Typically a consortium of lenders, led by the “Lead Bank”, ascertains a bankable project cost and in consulations with the SPV and the project sponsors a “Means of Finance”.

• EPC Contractor – EPC Contractor designs the project, procures all the engineering skills and equipment to construct the project, erects all the project facilities, ensures test and trial runs.

• O&M Contractor – Responsible for operating and maintaining the plant in line. Performance parameters that need to be achieved during operations are pre-defined in an O&M Contract.

• Government – It provides a concession to the SPV to set up the project and ensures that a proper legislative and regulatory framework exists that allows the concerned SPV to compete on a “level playing field” along with existing, possibly govt. owned entities in the same field.

Project Contracts

Some of the key project contracts 

• Shareholders Agreement – An agreement between all of SPV’s shareholders, including Project Sponsors. That establishes Shareholding pattern, Shareholder’s representation in management, Shareholder’s Exit Process and Right of First Refusal etc.

• EPC (Engineering, Procurement and Construction) Contract – An agreement between the SPV and the EPC contractor that establishes designing, procuring, constructing etc. as laid down in the contract, guaranteed and Min. Performance parameters, Responsibility of the contractor to rectify the plant if it fails guaranteed and Min. Performance parameters and penalties/Liquidated Damages.

• Project Loan Agreements – An agreement between the SPV and the project lenders that establishes CPs, amount of loan, tenor, moratorium, repayment obligations, interests rate, Events of default and remedies available to lenders under conditions of default.

• O&M Contract – An agreement between the SPV and the O&M contractor that establishes responsibility to operate the plant, maintenance obligations that will ensure that the project is maintained as per industry standards, Bonus payment to the O&M contractor, for exceeding pre-determined performance parameters and penalties for under achievement etc.

• Power Purchase Agreement (PPA) – A power purchase agreement is a contract between two parties, one who generates electricity for the purpose of sale (the seller) and one who is looking to purchase electricity (the buyer). The PPA agreement includes all of the commercial terms for the sale of any project between the parties, including when the project will begin its commercial operation, schedule for delivery of a specific type of any material, penalties, payment terms, and termination.

Some Typical Condition Precedents in power project financing are as under

• Completion of acquisition of land for the project
• Complete tie-up of the project equity, identification of project sponsors, and execution of a satisfactory Shareholders Agreement
• Execution of a bankable EPC contract
• Completition of Environmental Impact Assessment studies and receipt of clearances from the Ministry of Environment and Forests from the State Pollution Control Board.
• Execution of a bankable PPA
• Execution of a bankable O&M agreement
• Tie up all of debt, execution of loan documentation with all project lenders
• Creation of security (mortgage of land/hypothecation of assets)

Conclusion

Understanding the basics of Project Finance is extremely important for a Lawyer to work upon the Legal due diligence in Project Finance. The nature of project finance work also means that lawyers in this field gain a huge amount of knowledge in Finance, Contract Drafting. Lawyers will be involved in not only the negotiation and drafting, but will also be expected to review and comment upon the documentation being drafted by attorneys located in each other jurisdiction applicable to the transaction. As a result, Lawyers are often required to understand key documentation issues with the client. Attorneys also spend a great deal of time reviewing the agreements, including the agreements mentioned above like PPA, O&M, SPV etc. Applicable to a project, in order to prepare detailed due diligence report for the client. The purpose of such due diligence reports is to advise the clients on contingent liabilities and legal risks associated with a project that would be substantial to an investment or a lending decision. Given the technical nature of the project agreements, Lawyers will be expected to take the information in coordinating input from the various technical, financial, insurance and market consultants hired by the clients to assist in the due diligence and documentation process.

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“Seeing a new world with microscopic lens,” that’s how someone once described the world of mergers and acquisitions in a webcast I was watching.

Many students requested me this week to explain the challenges faced by lawyers who try to pursue a career in M&A or investment law, and how an online course can be of any help here. So let me start with that today.

I, of course, did not understand the enormity of the truth behind the statement (mentioned at the beginning) until I recalled my experience with M&A. As an intern, I used to be bogged down with review work, preparing documentations, and reviewing contracts, without knowing much about the transactional aspect of the deal. I was asking questions pertinent to me, but not necessarily the right ones it seems.

The webinar answered so many unasked questions about the laws regarding M&A, its practice and challenges. I almost considered revisiting one of the most in demand career options for a lawyer, once again.

However, this time I need to be more prepared.

I am one of those who needs to grow, learn new skills. I feel it makes me sharp. Keep them brain cells from dying, I suppose. This is primarily why I picked up writing after a gap of six years after quitting my cushioned job. I wanted to learn something new everyday. Once the learning stopped for me, I knew I had outgrown my environment.

If things are not changing, would you do something? You must do something. So did I.

I decided not to dive back into the ‘new world’ without being prepared. I will do the leg work. If I don’t know the how’s and why’s, I’ll take up an M&A course, write relevant articles, network better. I’ll do the whole shebang. If I am investing my money, time and energy into something, I better be doing the work!

M&A as a career is a lucrative opportunity. Law firms and companies pay good money to hire experts in the field. The question is how do you get through the door? Is knowledge, hard work and diligence enough?

So I looked back at my internship in order to figure out what needs to be fixed in my learning. Where had I gone wrong? This question led me to the struggles and challenges that I faced while working with on M&A transactions.

1. Transactional Understanding

I was an intern. They are the bottom of the legal food chain. That also meant that I did not have access or knowledge to the actual task of the transaction. I was usually given a specific query and asked to research on it. Sometimes I was given contracts and asked to review them for vulnerabilities. The point is I never knew the whole picture. I was looking for a solution through the narrow lense!

I asked questions which seemed pertinent to me. Such as, what is the nature of transactions, who are the parties and their details (or I looked for them online), what is the client’s specific requirements from the deal? Is it a foreign company? What is the company looking to acquire-shares or asset? I used to take lots of notes whenever my mentor was available. This helped me keep track of the things to do and specific instructions like ask X for the list of IP registrations.

The biggest challenge is that you might not know what the actual work you’re doing is for. You spend time without knowing the precise query. You get to do only a part of a bigger task. So, you need clarity from time to time. You need to find a suitable time and ask questions to your mentor.

2. Due Diligence

The second big part of the assignment was due diligence. My mentor needed me to review hundred pages long contracts and make a report of my findings. Usually he gave me an outline of the transaction at this stage.

What helped me was a list of my findings. I used to keep a tab in my notebook or a document as I went about with it. One has to review contracts, filings, books of the company, registers maintained and so on and so forth. Due diligence requires you to go through a lot of pages and data, so it may get monotonous from time to time. The challenge here is to identify the uniqueness of the transaction involved and build your report for the same.

It is advised to maintain a thorough requisition list which basically helps to know which documents are required for the due diligence and whom to obtain it from. In due diligence process you can analyse  data and identify things like the pending fine, any violation of law, ongoing litigations, etc. Then research of the applicable laws need to be done, i.e. what needs to go in the report, its implications, your inferences. All this helps while preparing the due diligence report.

3. Applicability of Laws

Although some of the applicable laws may be common like labour laws, tax laws, etc., there are several sectoral laws that needs to be researched into.

The challenge here is to find out which are the applicable laws. For instance, if the company is a non-manufacturing one, then registrations need to be done accordingly. The tax laws may differ depending on the nature of industry, state, number of employees, etc. It helps to refer to the labour law manual, IP law manual, SEBI website to be able to keep up with the updated laws.

Another challenge is to find out the local laws which may be inaccessible in many office libraries or may be in the vernacular version. For example, the stamp duty may differ from state to state. Once you figure out a way to do this, it becomes much easier to do the due diligence and consequently the transaction.

4. Drafting  Reports and Transactional Documents

I had to prepare notes and reports on my review of contracts. At the time I did not know what that report was or what for. Turns out it factors into the due diligence report!

I was preparing the report, noting down my observations, the action points, findings, and then suggesting manners to fix the open issues. This was being used to build the recommendations for the due diligence report.

The biggest challenge was the turnaround time for these documents. I remember asking my mentor when he needed the report or whether I was to do it on priority. He said, ‘I need this yesterday!’ Translation: Do it fast!

Initially, I tried to do the review fast, but I missed points which defeated the whole point of a due diligence review. Thereafter, I started finding out the observations, making notes, turning it into a document for discussion and refining the report.

The biggest challenge for me was drafting the transactional documents. The material contract for a company, the risks for the business model, etc. have to be reviewed. I was given a template and asked to modify the changes and incorporate  them as per the briefings. However, these transactions are slippery. There were times when requirements used to change overnight and had to be reworked again. I tried my best to insert the relevant clauses and language. It was tough! Initially, I made such a mess, my mentor had a rough time untangling it, and had to rework the whole thing! It was an uphill task.

5. Taking The Onus

The biggest and probably most difficult to accept challenge is taking the onus of the job.

Even if you’re doing the job with incomplete information or let’s say you are doing it for the first time, it is no excuse to do substandard work. The fact that you’re given an assignment which may go to different superiors and be fine-tuned is no excuse for you to become lax.

You need to take onus of your work done. You need to do it as if it is your own company or as though you are the final person to authorise it. The work has to be detail oriented and thorough. Your client or company may have compliances to adhere to, possible violations of regulations. But they don’t want to know about the problems alone. The clients want a fix- how to avoid paying damages, or how to comply with the regulations in time.

Is there a need to fear the challenges that M&A poses to lawyers as well as law students? Certainly not! They are manageable with knowledge, hardwork and diligence.

You can begin today.

There is much to learn about the industry and the job. How do you best articulate the commercial aspects of the transaction most suitably? Can you conceptualize and implement variations if the deal structure or negotiations changes? Do you know the necessary procedural aspects and stakeholders’ interests?

Learn how to structure the deal, the execution and implementation based on the transaction. That’s the job in a nutshell. And you must know how to do it!

How do you go about it?

Start learning hands on with the best available resources! You need to put in the work if you want to make the switch or start a career in M&A. There is no shortcut to learning, but there are easier ways to build your knowledge base and practical skills required through readily available online courses on M&A, Investment Law and Banking Transactions, reading as well as writing well-researched articles, updating yourself with laws and keeping a tab on the latest news in the field!

The logic for learning about M&A is simple. You went to law school to study law and work hard, so that you can become a lawyer. You need to do the same thing to be a successful M&A lawyer. Study about M&A (law school barely covered it), learn the practical skills from the best minds in the industry, work hard and make your own career in M&A! You need to invest the time and energy to go after what you want and make it happen!

I know you’re pressed for time, but you’ve got to make time! We don’t need to make the same mistakes on our own, you can always learn from mine. Don’t waste more time and take action.

We at LawSikho have devised the M&A course curriculum, keeping in mind all these challenges that are faced by M&A lawyers on a regular basis. The course not only covers the theoretical aspects of the applicable laws, it also helps to learn the practical aspects like conducting due diligence, drafting reports and transactional documents through a series of extensive exercises. You get to learn about the things that you get to do on the job as an M&A lawyer, through this course and learn how to develop your transactional understanding, analytical and logical abilities in order to strategize better for your clients.

With only nine days left till the admissions are closed, you must hurry up and register yourselves up for the Diploma in M&A, Institutional Finance and Investment Laws!

Today is the day. Take action.

The post What are the big challenges you face when you begin to practice M&A laws? appeared first on iPleaders.

In this article, Purva Anand discusses the Jurisprudential understanding of Justice.

A few human ideals have persisted in our society for as long as the ideals surrounding “justice”. The relevance of the ancient Greek philosophers that we so often come across, such as Plato and Aristotle in a modern world so different from theirs lies in the unanswered questions they deliberated on. One of these is the concept of “Dikaiosyne” which loosely translates to the spirit of righteousness or justice. This led to the question of ‘what is Justice’? Several centuries later, justice still remains to be an unanswered question with no definite explanation.

Even children, not completely socialised to the “morals” of the grown up world have strong notions of fairness and an acute aversion to apparent injustice. Amartya Sen, says in the introduction to his book ‘The Idea of Justice’ that… “the strong perception of manifest injustice applies to adult human beings as well (as children). What moves us, reasonably enough, is not the realization that the world falls short of being completely just – which few of us expect – but that there are clearly remediable injustices around us which we want to eliminate.”

Indicating that (1) justice is a moral- an inbuilt yardstick by which humans can judge their conduct and that of others and not a learnt behavior, (2) we do realise that justice is an unachievable standard and (3) that humans strive to eliminate what they perceive as a correctable injustice that occurs in their surroundings. When it comes to the third point, it brings about a subjectivity in the idea. Every person may perceive a situation differently and estimate it to be just or unjust by his/her own standards (as is often the case with any moral judgement).

Hence throughout history, different authors have answered the question ‘What is Justice?’ differently.

Plato

For Plato, justice lies in virtuous action. Justice occurred when each individual in a society acted in accordance to the virtue or skill they possessed (divided into three groups-the philosophers, the warriors and the artisans). He also emphasized on the bodiment of the principles of justice on the individual level. “Justice in the life and conduct of the state is possible only as it resides in the hearts and souls of the citizens.” i.e. When the three elements of an individual- reason, spirit and appetite performed their own functions without interference into the other elements.

Aristotle

On the other hand, Aristotle viewed justice as fairness among individuals and developed the ideas of distributive justice, fairness in distribution of goods and opportunities to individuals and in case of a fault in it, corrective justice comes into play. Reflections of Aristotle’s corrective justice can be found in the statement (pt3) above- humans strive to eliminate injustices.

John Rawls

John Rawls in his book “A Theory of Justice” emphasizes justice in “the first virtue of social intuition as truth is of system of thought”. He relates justice to the social institutions which form the basis and manipulate the thoughts and acts of human beings. In turn to ensure just and fair social institutions, the establishment of such institutions must be under the “veil of ignorance” by social contract, i.e. all individuals to make collective decisions regarding society being unaware of their natural abilities, social and economic standing.
For example- consider two alternative options and B of a city having five inhabitants and total resources as 100. The total resources are distributed as follows:
A- 10,10,10,10,60
B- 20,20,20,20,20

If it was known to us that we are the fifth citizen, alternative A, although extreme, would appeal to us the most but under the veil of ignorance, the alternative B is likely to be chosen. Why?

The direct consequence of the veil would be for all to choose the alternative that would benefit the maximum and would be closest to the “just and moral” action. Uniform ideas of what is fair, what the are the rights to be guaranteed, what opportunities should be given, what decisions must further be made, prevail in society. The veil of ignorance removes personal biases, conduces rational decisions and aligns the self interest of each individual with the entire group, as he does not know his identity thus ensuring a uniform idea of all. A uniform idea of just action.

Prof. Amartya Sen

The modern discourse about justice has travelled far away from this idea. Rigid insistence that there could only be one precise combination of principles that could serve as the basis of ideal social justice has been greatly questioned. Prof. Amartya Sen perhaps best elaborates this stand via his story of “Three Children and a Flute”.

“Anne, Bob and Carla contesting for the ownership and possession of a flute. Anne being the only one knowing how to play a flute claims it for herself. Bob on the other hand counters with claims of poverty and him being unable to buy a flute. Carla claims to have actually made the flute by her own skill and claims she is entitled to own it.”

To a perfectly neutral individual, all three are good in their claims, their claims being backed by different perspective theories of justice. Anne should have the rightful possession according to the utalitarian view, and similarly Bob according to the egalitarian and Carla according to the liberatians. One of my colleagues also offered a more unique and elaborate solution- Carla should have ownership, but Anne should be allowed to play the flute for money which should in turn be given to Bob. On more critical view, is Carla being denied of her possession, Anne being deprived of the money she had earned by her skill, and Bob gaining money in exchange of no contribution fair? So what exactly is just?

Referencing back to the initial position Justice still remains to be an unanswered question with no definite explanation, perhaps best said by Prof. Sen himself “there may not indeed exist any identifiable perfectly just social arrangement on which impartial agreement would emerge” and the choosing of any one alternative can appear to be just but is instead arbitrary.

There have been several theories and ideological conflicts regarding the word “Justice” but despite of this there are several instances of injustice happening in our world. Justice and injustice are arch enemies of each other which cannot co-exist, further quoting Martin Luther King Jr. “Injustice anywhere is a threat to justice everywhere”. Hence the only conclusive and correct statement is “Justice is the absence & removal of Injustices”.

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This article is written by Shrey Sharma. The article discusses the Indian constitution and environmental protection.

Introduction

It’s evident from the construction of the Constitution that the idea of environment was never there in the minds of the founding fathers of the Indian Constitution. Consequently, the expression ‘environment’ does not find any mention in the Constitution. However, there are many items in the legislative lists which enable the Centre and the State to make laws in the field of environment like public health, sanitation, agriculture etc.

Moreover, it is interesting to note that all the substantial steps taken by the State towards the protection of environment, were taken after the Stockholm Conference, 1972. Prior to the conference, it did not hit the conscious of the Indian government that they need to proactively work towards safeguarding the environment.

The Constitution 42nd Amendment Act, 1976 which moved forest, wildlife and population control from the State to the Concurrent List enabling both the state and the centre to make laws pertaining to these areas is one of the examples out of the several initiatives taken by the Indian Government towards environment protection.

There is no doubt in saying that it is the responsibility of the State to protect the environment. However, it took a long time for the Apex Court to pronounce explicitly that the right to life under Article 21 of the Constitution contains right to have a healthy environment.

Steps Taken Post Stockholm Conference, 1972

Several environmental legislations existed even before the independence of India. However, the major development took place after the UN Conference on the Human Environment (Stockholm, 1972). After the conference, the National Council for Environmental Policy and Planning was set up in 1972 within the Department of Science and Technology to establish a statutory body to look after the environment related issues.

The council later evolved into a fully fledged Ministry of Environment and Forests (MoEF). MoEF was established in 1985 and today is the apex Administrative body in the country for regulating and ensuring environmental protection and; lays down the necessary legal framework for the same. Further, since the 1970s a lot of environmental legislation have been laid down. MoEF and various Pollution Control Boards (“CPCB” i.e. Central Pollution Control Board and “SPCB” i.e. State Pollution Control Board) together form regulatory and administrative core of the sector.

Apart from establishing numerous pollution control boards and MoEF, various other legislation like The Air Act and the Environment Protection Act (EPA) were also enacted. Moreover, as their long titles show, these Acts were enacted by virtue of the provision in Article 253 of the Constitution to implement the decisions of the international conferences and conventions. Indian Parliament also enacted Wildlife Act and the Water Act by exercising its power under Article 252 of the Constitution of India.

Steps taken by the Indian Government and Judiciary towards Environment Protection

The right to live in a clean and a healthy environment is not a recent invention of the Indian Judiciary. The only difference is that the right has been recognised as a fundamental right by the Indian Judiciary over the period of time. The right to live in a clean and healthy environment existed from centuries ago, but it attained the status of ‘Fundamental Right’ only a few years back. The judiciary has widened the ambit of Article 21 by including right to have a clean environment in it and further making it a fundamental right.

Article 21 talks about the right to life and personal liberty, it reads as follows “No person shall be deprived of his life and personal liberty except according to procedure established by law”. This article imposes a duty on the state to protect the life and liberty of the people. The concept of this article has been broadened by judicial pronouncement. In the case of Subhash Kumar v State of Bihar, it was held that ‘right to life’ guaranteed under Article 21 includes the right to have pollution-free water and air. Through this case the court recognised the right to a wholesome environment as part of the Fundamental Right, making it a landmark judgment.

In the case titled as Rural Litigation and Environment Kendra, Dehradun v. State of UP the representatives of the rural litigation and entitlement Kendra, Dehradun wrote to the Supreme Court alleging that illegal mining in the Mussoorie-Dehradun belt is causing damage to the eco-system. Therefore, the court ordered the closure of a number of limestone quarries.

Moreover, the issue of vehicular pollution was discussed in the case titled as M.C. Mehta v. Union of India. The apex court, in this case, reaffirmed that the right to a healthy environment as a basic human right and held that right to clean air also stems from Article 21 which talks about right to life. It is considered to be a landmark judgment, as after this judgment lead-free petrol supply was introduced in Delhi.

Further, The Constitution of India originally adopted did not have any direct and specific provision regarding the protection of natural environment. It only contained few directives to the State regarding public health, agriculture and animal husbandry but none were judicially enforceable. Some of the Directive Principles of State Policy showed a minute inclination towards environmental protection i.e. Article 39(b), 47, 48 and 49 which individually and collectively impose a duty on the State to take measures for improving the general health of the environment and provide a clean environment to the country.

However, later through a constitutional amendment, two specific provisions i.e. Article 48- A and Article 51-A (g), has been added to the Constitution which puts a duty on the State as well as the citizens of India to protect and conserve the environment.

Conflict between Environment Protection and Citizen’s Rights

The freedom of expression under Art 19(1) (a), right to carry on a business, trade or occupation under Art 19(1) (g) , freedom of religion under Art 25 and above all equality under Art 14 are the areas where these conflicts arise in contradiction with the right to a healthy environment under Art 21. An inquiry into the cases will reveal, as to how the Courts reconciled the two issues.

A. Land Use

In T Damodhar Rao v Special Officer Municipal Corp, Hyderabad, it was held for the very first time by an Indian Court that the conversion of open space, the lungs of a populated area, would affect the right to life under Art 21 of the constitution. Later, in Banglore Medical Trust v BS Mudappa the Supreme Court proceeded with the same vigour and prevented using the open space for constructing a private medical complex.

Similarly, in V Lakshmipathy v. State, the petitioners challenged the locaton and operation of industries and industrial enterprises in a residential area as violative of Karnataka Town and Country Planning Act, as well as the right to life under Art 21 of the Constitution. The court held that the mandate of the Constitution is to build a welfare society and for that utmost priority should be given to the environmental protection and its preservation. Thus, neglecting this will be an invitation to a disaster.

B. Freedom of Trade and Property

In Residents of Sanjay Nagar v. State of Rajasthan, the Rajasthan High Court came across an interesting situation. In this case the owners of the slaughterhouse were discharging untreated animal blood in the drains of the residential colony, where it was situated. Consequently, the court reminded the owners of their duties under Art 21 and 48A for protecting and improving a clean environment and ordered them to shut the slaughterhouse. An observation made by the Supreme Court in one of the MC Mehta cases is in consonance with the above-mentioned judgment. It was pointed out in MC Mehta v Union of India that the most vital necessities, namely air, water and soil having regard to the right to life under Art 21 cannot be permitted to be misused and polluted so as to reduce the quality of life of others.

Moreover, the case titled as Ivory Traders and Manufacturers Association v. Union of India is another example of a judgment, restricting the fundamental right of the citizens for preserving and safeguarding the environment. It was held that any trade which is detrimental to the environment, can totally be banned without attracting Art 19(1) (g) of the Constitution. It was further held that any trade which involves killing of animals like elephants, in this case, cannot be taken as business or trade in the sense of Art 19(1)(g) of the Constitution.

C. Constitutional Obligations of Hazardous Industries

The Supreme Court in MC Mehta v Union of India has ruled that an enterprise which has engaged in a hazardous or inherently dangerous industry which poses a potential threat to health and safety of persons working in the industrial unit and residing in the surrounding areas, owes and absolute obligation to the community to ensure that no harm results to anyone on account of such hazardous or inherently dangerous nature of the activity.

D. Restriction Freedom of Speech

The Constitution of India grants every citizen the Right to Freedom of Speech and expression. However, if it impinges upon the rights of another then it can be restricted. Noise pollution is a notable example of such impingement. In Rajni Kant v State the petitioner, the leader of a political party was not allowed to use loudspeakers in the public meeting he wanted to organise. The petitioner, in this case, contended that such restriction is violative of his right to freedom of speech under Art 19(1) (a) of the Constitution. The court held that the impugned bylaws do not infringe Art 19(10 (a) of the Constitution.

Conclusion

It can be easily deduced from the above-mentioned cases that though the facts and circumstances of all the cases are different but the underlying principle in all the cases is the same i.e. protection and preservation of the environment. Initially, the Indian Government adopted a very lackadaisical attitude towards the conservation of the environment, by not including any legally enforceable principles in the Constitution of India. However, with the passage of time the State realised the blunder that they have made and thus, started making conscious efforts in not only protecting the environment but in developing it too. The evolution was slow but it happened in due time and as it is said better late then never. Moreover, the importance of Murali S Deora v Union of India cannot be undermined, as this judgment declared the pollution caused by smoking, violative of Article 21 of the Indian Constitution.

The right includes the right to health and the right not to be afflicted by diseases. The decision, undoubtedly promotes the aims behind EPA, namely protection and improvement of the environment. Since its incorporation into the constitution by the Forty-Second Amendment, the idea of protecting and improving the environment did not attract the attention of the Indian judiciary for a long time till the significant ruling in Municipal Council, Ratlam v Vardhichand was passed. Though the apex court moved at a snail’s pace in achieving its objective of environment protection but the High Courts, interestingly made a huge leap in this respect. No wonder, the Supreme Court was quite convinced of the Constitutional mandate for environmental protection and rendered decisions with necessary interpretations and in consonance with this mandate.

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