Written by Amarnath Simha, pursuing  Diploma in Companies Act, Corporate Governance and SEBI Regulations and Certificate Course in Real Estate Laws offered by  Lawsikho as part of his coursework.  Amarnath is a practicing lawyer in Bengaluru and working in the field of Civil Litigation for the past 17 years.

A company is an artificial legal person entitled to do business in its own name and seal and having all the relevant powers of a natural person while so conducting the business including owning and disposing of properties in its own name. For recognition of such an artificial legal person to do business as such, it has to be incorporated under Law. The word ‘company’ has been defined by Section 2 (20) of the Companies Act, 2013 (hereinafter referred to as the Act) to mean a company incorporated under the said Act or any previous company law. All the sections mentioned below are of the Act unless specified otherwise

Types Of Companies

The Act basically mentions two types of companies in respect of business-oriented companies: Private and Public. A Private company including one person company (Section 3(1)(c)), amongst other things, is basically different from a public company in as much it is prohibited under the Act for issuing an invitation to the public to subscribe to any of its securities (Section 2(68)). A Public Company is a company which is not a private company and has a minimum paid-up share capital as may be prescribed (Section 2(71)) i.e., those companies which are entitled to issue an invitation to the public to subscribe to its shares.

Types Of Public Companies

The Public Companies can be divided into a listed company and an unlisted company.

Meaning Of Listing/Listed Companies And Stages Of Listing

Listing basically means that the shares or other securities of a company are traded on a platform of a particular stock exchange. Any person wanting to buy or sell the shares of a listed company can engage in those transactions without having to go anywhere else in search of an individual willing to sell or buy.

Section 2(52) defines a listed company to mean a company which has any of its securities listed on any recognized stock exchange. Section 2 (73) defines a recognized stock exchange to be one defined under Section 2(f) of the Securities Contracts (Regulation) Act, 1956. Section 2(f) of the Securities Contracts (Regulation) Act, 1956 (SCRA for short)defines a recognized stock exchange to be a stock exchange which is for the time being recognized by the Central Government under Section 4 of SCRA. Section 2(j) of SCRA defines a stock exchange to means a body of individuals or body incorporate constituted or incorporated for the purpose of assisting, regulating or controlling the business of buying, selling or dealing in securities. Securities is defined under Section 2(h) of SCRA to include shares, bonds, debentures, other marketable security of a like nature etc., amongst others.

Listing can be done at the stage of public offer or separately, at a later time, without any public offer. The stock exchanges can impose basic criteria to be met at both the times. Many public companies may not be interested or may not meet the criteria or sometimes the listed companies may fail in compliance leading to delisting. Hence many public companies are unlisted.

Can The Securities Of A Private Company Be Listed

Under the repealed Companies Act, 1956, a listed company was defined to mean a public company which has any of its securities listed in any recognized stock exchange under Section 2 (23A) of that Act. In the new Act, the word ‘public’ is missing.

Even though the word ‘public’ is missing in the definition of listed company under the new Act, it can be taken to be implied as listing can be done only for freely and publicly traded securities which is not possible in respect of the securities of a private company.

This inference can also be arrived at with the help of the decision rendered by the Division Bench of the Bombay High Court in the case of Dahiben Umedbhai Patel vs. Norman Jones Hamilton decided on 8.12.1982. This case was dealing with a question whether the agreement entered into between two private individuals with respect to shares of a private company can be held to be void as being in contravention of Section 13 of the SCRA. To answer this question, the court went into the provisions of the Companies Act, 1956, as well as SCRA and ultimately, reached a conclusion that the shares of a private company do not come within the marketable nature of the security as defined Section 2(h) of the SCRA and hence shares of the private company are not securities as defined under the SCRA.

Hence if the shares of a private company are not securities under the SCRA, they cannot be traded on the stock exchanges as defined under SCRA. Consequently, since the Act itself defines recognized stock exchanges to be one defined under the SCRA, the Act also prohibits listing of securities of a private company. Hence a private company can never be a listed company as its securities cannot be listed.

Meaning Of Public Offer

Public offer is not defined in the Act but Section 42 states what is deemed to be a public offer. Explanation I to Sub-Section 2 of Section 42 states that when a company makes an offer to allot/invitation to subscribe any of its securities to more than prescribed number of persons (excluding QIB and employees under ESOP), the same shall be deemed to be a public offer. Sub-Section 2 of Section 42 states the number to be not more than 50 or such higher number as may be prescribed, in case of a private placement. Hence any invitation to 51 or more persons is deemed to a public offer under the Act.

Hence, a public company by issuing private placements to less than 50 persons can still escape all the requirement of compulsory listing as Section 40 provides for a mandatory listing in case of a public offer.

Meaning Of Unlisted Company

The term ‘unlisted company’ is not defined in the Act. However, it can be defined as follows: An Unlisted company means a public company whose shares are not listed on the stock exchange or which is not making a public offer or a delisted public company. Since delisting is possible, the definition can mean to include a public company which had previously made a public offer but later got delisted. An unlisted company, if raising investment, will always have to make a private placement to 49 or fewer persons at a time even though the number of shareholders may exceed 200

Difference Between A Private Company And An Unlisted Company

Apart from the prohibition on issuing of an invitation to the public to subscribe to its shares, there are also other restrictions on the private company as prescribed by Section 2(68). A private company imposes restrictions on the transferability of the shares by its articles and restricts the number of members to 200.

In the case of an unlisted company, though the number of members may be less than 200, it is not a matter of prohibition. However, the shares of an unlisted company are freely transferable. Section 58(2) makes it clear the shares of a public company are freely transferable. Hence, there cannot be any restrictions on its transferability as in the case of a private company. Hence, an unlisted company, even though not listed, not issuing any public offers and the number of members may be, in certain cases, be less than 200, is still not equivalent to a private company as its share are freely transferable.

Section 24: Administrative Powers

Any company making public offer is to be administered by the SEBI in respect of provisions of Chapter III, IV and Section 127 of the Act by virtue of Section 24. If any references are made to SEBI Regulations, it is only for the purpose of bringing out the position in the case of listed companies. At the same time, Section 24 of the Act places the administrative powers of the other companies in respect of provisions of Chapters III, IV and Section 127 with the Central Government. The other companies include unlisted companies and hence, in respect of unlisted companies, the Central Government is the

Section 29: Dematerialisation

Dematerialization has not been statutorily defined but it can be taken to mean that the securities would no longer be in physical form but in the electronic form and the trading will take place in the electronic form and not over the counter. India moved to dematerialization in the year 1996 by virtue of the Depositories Act, 1996.

Section 29 starts with a non-obstante clause and states that every company making public offer and such other class/classes of the public companies as may be prescribed shall issue securities only in dematerialized form. The section also makes it clear that in case of companies not covered above, the shares may in physical or demat form. Hence, a private company may keep its securities in physical form. Every company making public offer, being necessarily a public company will have to issue securities only in demat form.

Section 68B of the repealed Companies Act, 1956 made it mandatory for every listed company making IPO of any security for a sum of Rs.10 crores or more to be compulsorily in dematerialized form. The said section was introduced by way of Companies (Amendment) Act, 2000. The SEBI (Issue of Capital and Disclosure Requirements) Regulations 2009, which is still in force, allows the investors to get it rematerialized but it can be traded in demat form only.

Companies (Prospectus And Allotment Of Securities) Third Amendment Rules, 2018

For public companies not making public offer i.e., the unlisted companies, the Central Government has the power to issue directions both under Section 24 r/w clause (b) of Sub-section (1) of Section 29 r/w Section 469. The word ‘prescribed’ appearing in connection with the class or classes of public companies in clause (b) Sub-section (1) of Section 29 is also defined in the Act to mean prescribed by rules made under this Act (Section 2(66)). Section 469 enables the Central Government to make rules for all or any matters which by the Act are required to be or may be prescribed. Hence the Central Government has the powers to make rules in respect of unlisted companies.

The Central Government has issued a gazette notification on 10th September 2018 publishing the Companies (Prospectus and Allotment of Securities) Third Amendment Rules, 2018 by which Rule 9-A. was inserted and has to come into force on 02.10.2018. Rule 9-A deals with Issue of securities in dematerialized form by unlisted public companies

Sub-Rule 1 of Rule 9-A states that every unlisted public company shall issue securities only in dematerialized form and facilitate all the existing securities to be held in dematerialized form. Sub-Rule 2 mandates the unlisted public company making an offer for the issue of any securities or buyback of securities or issue of bonus shares or rights offer to ensure that all the securities of its promoters, directors, Key Managerial Personnel are dematerialized before taking the above actions.

The Sub-Rule 3 makes it mandatory that any trading in securities shall only be in dematerialized form. It goes further by stating that the intending purchaser of the securities of the unlisted public company shall get all his existing securities in the dematerialized form before purchase. Since the sub-rule talks only about the holder of securities of an unlisted public company, it means his existing securities in the unlisted public companies, whether of the same unlisted public company or a different unlisted public company.

Sub-rule 4 onwards speaks about the procedures and the steps to be taken. It speaks about filing applications by the unlisted public company to the depository and securing ISIN and informing about the same to the security holders. Sub-rule 5 states about timely payment of fees failing which it shall not be entitled to issue securities as provided under sub-rule 6. Sub-rule 5 also speaks about maintaining security deposit of not less than two years fees.

However, Sub-rule 5(c) and sub-rule 7 require further clarification.

5. Every unlisted public company shall ensure that-

(a)…
(b)…
(c) it complies with the regulations or directions or guidelines or circulars, if any, issued by the Securities and Exchange Board or Depository from time to time with respect to dematerialization of shares of unlisted public companies and matters incidental or related thereto.

(7) Except as provided in sub-rule (s), the provisions of the Depositories Act 1996, the Securities and Exchange Board of India (Depositories and Participants) Regulations, 1996 and the Securities and Exchange Board of India (Registrars to an Issue and Share Transfer Agents) Regulations, 1993 shall apply mutatis mutandis to dematerialisation of securities of unlisted public companies.

On the first glance, this seems to be in direct conflict with Section 24. The administrative powers in respect of unlisted public companies lie with the Central Government. Hence, by virtue of these rules, the Central Government has given the administrative powers to SEBI which is statutorily impermissible. Even though section 469, Central Government has the power to make rules, it can be urged that it cannot make any rules contrary to the statute. Since dematerialization is dealt in section 29 which is part of Chapter III which administrative powers lie with Central Government statutorily, the central government by rules cannot delegate the same to any other authority including SEBI. However, the delegation of powers is allowed under Section 458 which states that the Central Government may by notification delegate any of its powers or functions under this Act to such authority or officer as may be specified in the notification. Hence, the Central Government is authorized to delegate its power under the Act to SEBI, though the relevant section i.e., Section 24 says otherwise.

Sub-rule 8 provides submission of an audit report as provided under regulation 55A of the Securities and Exchange Board of India (Depositories and Participants) Regulations, 1996 to the Registrar. Sub-rule 9 provides for grievance redressal forum in the form of Investor Education and Protection Fund Authority for the grievances of the security holders. The authority has been given an authority to initiate action against the depository, participant, share transfer agent or the registrar to an issue in consultation with the SEBI.

The Advantages Of Dematerialisation

The advantages of Dematerialisation of shares in cases of unlisted companies are in fact more than what is available to demat shares in the cases of listed companies. The listed companies have mandatory compliances under various regulations of the SEBI, which are not yet made applicable to unlisted companies. The advantages which were envisaged under the objects while enacting the Depositories Act, 1996 are also applicable to amendment by inserting rule 9-A.

The objectives of the Depositories Act were faster transaction/settlements/transfers and also safer transactions removing theft, loss, forgery etc., The central government is also perceived to have inserted this rule 9-A to detect black money, though there are no official communications regarding that.

Apart from the same, this increases the ease of maintenance of records while at the same time decreasing the cost, monetarily and space wise, of the same as also removal of any unforeseen mishaps or mistakes. It increases the trading efficiency and has removed unnecessary paperwork.

In any event, the advantages which are envisaged under the Depositories Act, 1996 would be applicable here and increases the trust of the investors and thereby helping the economy in the long run.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

The post Unlisted Companies and Mandatory Dematerialisation of its Shares appeared first on iPleaders.

In this article, Shivani Singh discusses How to structure an MLM company legally in India.

Direct Selling / Network Marketing / Multi-level Marketing (MLM) industry

An MLM or a Multilevel Marketing is a system of marketing in which selling of goods and services takes place through a network of distributors. A Multilevel Marketing system is adopted by various companies whether private or public to increase the sale of their produced goods and services. A company prefers Multilevel Marketing system over establishing showrooms in different parts of different countries which is a long process, both time and money consuming. The distribution process under Multilevel Marketing takes place at more than one level and due to a large number of distributors, it helps to reach maximum customers of the market.

How do a Multilevel Marketing works?

Recruitment is the common element of all the Multilevel Marketing systems. People are offered to become a distributor or a consultant of the company either through advertisements or through another distributor of the products of the same company. A Multilevel Marketing system has different types and is also known as Network Marketing, Direct Sales, Pyramid Selling, or Referral Sale but there is a minute difference among all these strategies.

• Network Marketing: Network marketing is a flexible business strategy in which a distributing network is required to set up in the business. It has the features of multilevel marketing in which a transaction takes place at more than one level.
• Referral Selling: Sales Referral is a strategy in which an existing customer provides contact information of a customer or a client to the sales representative. It’s a general process in which a sale representative ask the existing customer for sale referrals through connections which would result in a successful sale.
• Pyramid Selling: In this system, the selling of goods and services when each salesperson recruits further salespeople thus a hierarchy is formed in which each person receives returns made by salespeople in the chain below them. The current position of Pyramid selling is that it is not legally allowed for a company in India under Direct Selling Guidelines, 2016.
• Direct Sale: Direct selling is a business strategy which includes both Single-level Marketing and Multilevel Marketing. In Single Level Marketing system a direct seller generates income by buying goods and services from the parent company and selling them to customers directly. In Multilevel Marketing system a direct seller has a double source of income- one is through selling directly to customers and second is by sponsoring new direct sellers and charging good commission from them.

Some big companies in the MLM market

There are various prominent companies who have adopted Multilevel Marketing and a few of them are:

1. 1. Amway is an MLM company which was founded by Richard DeVos and Jay Van Andel in 1959. The annual sale of Amway is around $10.9 Billion and the number of sales associates are approx. 3 Million. Amway company deals in products like- cosmetics, wellness, food, and beverages products.
   2. Amsoil Inc. is also a corporation based in America primarily dealt in Synthetic Lubricants and Filters. The company adopted the Multilevel Marketing system to cover a maximum number of customers. The company’s slogan for advertising their products was The First in Synthetics. Amsoil Inc. was founded by Albert J. Amatujio in 1972.

• Oriflame is a Swedish company founded by Jonas and Robert Af Jochnick in 1967. This company deals in cosmetics, personal care, lip balm, and dietary supplements and has also adopted the Multilevel Marketing system for selling their products on a large scale.

Why is a Multilevel Marketing so prominent?

A Multilevel Marketing is a very easy formula for money making, there is no limit to how much money you could make. Multilevel Marketing is generally less expensive than other forms of marketing. It is very economical to become a distributor than to start a business of your own which involves the element of risk. A Multilevel Marketing programme attracts various distributors due to their lucrative rewarding schemes. Companies like Amway offers cash bonuses on performance basis every month, the distributing staff of Avon company is offered various trip packages to different destinations.

Legality of Multilevel Marketing system

The system of Multilevel Marketing is generally less regulated or laws for it are very vague. Multilevel Marketing is legal in the United States of America and In Canada also until and unless it contravenes The Competition Act. Federal Trade Commission (FTC) regulates Multilevel Marketing in the USA. The Multilevel Marketing plan is legal in India and hit the business industry of India in 1995 when a global MLM company Oriflame first introduced network marketing in India. After this Tupperware introduced Multilevel Marketing to Indian Markets and opened doors for other MLM companies in India. The renowned MLM companies in India include MaryKay, Avon, Forever Living. Multilevel Marketing is governed by The Consumer Protection Act, 1986.

Procedure to structure an MLM Company legally in India

A. Formation of Company

The first step is to establish a company which can be a Ltd. or Pvt. Ltd. company and Firm or an SSI firm to set up a Multilevel Marketing plan which does not involve more risk.

B. Documents for incorporation

The second step is proper documentation required for incorporation of a company and the documents required are: Registration/CIN number, Bank Account number, PAN Number, Tan Number, Labour Licence etc.

C. Incorporation of Company

At the time of incorporation of a company, it is very important to prepare a layout plan which includes working, non-working plan, repurchase plan, RD/Fd return plan.

D. Selection of Product

The fourth step is finalizing the type of product to be manufactured or to be dealt with. It is the stage to decide whether to produce physical and virtual goods or consumable and one-time purchase goods or taxable products, insurance, and FMCG products.

E. Product Launching

This stage is known as product launching stage. At this stage, the company attracts a large number of customers by providing pre-launch offers, permanent and monthly offers which would help to create goodwill in the market.

F. MLM  Software for the Company

At this stage, a company should approach an MLM software making company which has the best software at low cost. It must be an online software which is easily accessible by general consumers. The software should include facilities like user login, join now option, latest updates, festival/celebration notifications, achievers list, ePin, eWallet etc.

G. Legal Policies

This stage is known as the policy-making stage of the company where policies and programme are framed by company keeping in view all the technical as well as legal aspects of that country where the company is incorporated. The policies of the company may include a privacy policy, return of product procedure and conditions for the same, shipping policy, post-sale service policy, termination policy etc.

H. Requirement of other documents

It is the last stage of structuring a company for MLM business form. Other documents that are required by the company includes company logo, physical form, printed materials for distributors like pamphlets etc. and media packages.

Fundamental guidelines by the government for MLM companies

These are the model framework guidelines for Direct selling or Multilevel Marketing which acts as an advisory for all the states and Union Territories to protect legitimate rights and interest of consumer by preventing fraudulent activities. These guidelines are known as Direct Selling Guidelines, 2016.

Kerala was the first Indian state that had formed MLM guidelines for MLM companies in India.

1. Definition:

• • ‘Act’ means Consumer Protection Act, 1986.
  • ‘Consumer’ is the person who buys goods and services for his personal use and not for resale or manufacturing and it means the same as defined under The Consumer Protection Act, 1986.
  • ‘Prospect’ is the person who is offered to join the Direct selling opportunity.
  • ‘Direct Seller’ is the authorized person appointed by direct selling organization through a legally binding contract who undertakes direct selling business on principal to principal basis.
  • ‘Network of Direct Selling’ this includes Multilevel Marketing distribution method. In this, there is a network of direct sellers at different levels of distribution who further recruit or sponsor direct seller for other levels of distribution.
  • ‘Direct Selling’ includes marketing, distribution, selling of goods and services as apart of direct selling network excluding the Pyramid Scheme.
  • ‘Pyramid Scheme’ is a network of multiple layers formed by subscribers enrolling one or more for the purpose of receiving direct or indirect benefits resulted from enrolment, action or performance of additional subscribers to the scheme. ‘Pyramid Scheme’ is not applicable to the multi-layered network of subscribers to a scheme formed by Direct Selling entity. The policies of Direct Selling entities must comply with the provisions that are:

• A direct seller will not receive any remuneration or incentives for the recruitment of new subscribers.

• No participant is required to purchase goods or services exceeding the expected amount for sale or resale to customers and for a number of goods and services that exceeds an expected amount to be consumed by, or sold, or resold to consumers.

• No participant is required to pay/registration fee, cost of samples sold, equipment and material or other fees related to participation.

• “ remuneration System” for every direct selling entity shall not have any remuneration clause for the direct seller to participate in direct selling; To ensure the remuneration for direct sellers must derive from the sale of goods and services; Clearly mention the method of calculating remuneration.
• ‘State’ includes all the Union Territories of the country.

2) Terms and condition for setting up an MLM or a direct selling Business :

Every direct selling entity or an MLM company must comply following conditions within 90 days of the publication of the notification in Gazette: It shall

• Be a registered legal entity under the laws of India.
• Conduct an orientation programme for all the anticipated direct sellers informing them about all the aspects of direct and Multilevel Marketing including selling operations, remuneration system, anticipatory remuneration for prospective direct sellers.
• The promoter or the important personnel of the management of MLM company should not have been convicted for any criminal offence of imprisonment in the last 5 years by any court of competent jurisdiction.
• Inform about the provisions of full-refund or buyback guarantee to every direct seller on reasonable conditions to be exercised within 30 days of the date of distribution of goods and services to the direct seller.
• Notify about the cooling off period which entitles a direct seller to return goods and services purchased from a direct seller during a cooling off period.
• Have an office identified jurisdiction and operations in the state so that the consumers and direct seller get easily acquainted with the price of products, return, replacement and delivery policy, after sale related grievances redressal.

3) conditions for the conduct of direct sales and an MLM Business:

• Direct selling or an MLM entity must have all the document like sales tax/VAT, Income tax, TDS and other document required by law of land of business.
• Should have a bank account with at least one nationalised bank.
• Nature of business must be clearly stated in Partnership deed or memorandum of association. (if the ‘nature of business’ clause is not included in partnership deed or MOA then it must be ratified within 2 months of the date of publication of these guidelines.)
• incentives on Pay sale basis at an agreed rate within an agreed time period.
• The official website should display names and identification number of authorised direct sellers and must provide consumer complaint redressal mechanism in an easily accessible format on the website.

4) conditions of the contract between an MLM business entity and MLM sellers:

• There is always an agreement between MLM business entity and MLM sellers which must comply with section 10 of The Indian Contract Act, 1872 also the rights and duties of parties must be coextensive with the rights and duties as provided under the Act.
• The agreement shall be in writing and containing all the material facts or information regarding participation.
• Termination of contract on a reasonable notice on instances where a direct seller has not sold any goods and services up to 2 years since the contract was entered into or last sale transaction by a direct seller.
• An MLM or Direct selling entity shall appoint/authorise direct seller on an application in prescribed format and must not contravene provisions of The Indian Contract Act, 1872.

5) Restrictions or Prohibitions:

• Distribution of goods and services after being known of its inferior quality or the product have crossed the expiry date of manufacturing.
• Direct selling or MLM entity/Direct seller must not indulge in money circulation or any other activity that is barred by Prize Chits and Money Circulation Scheme (Banning) Act, 1978.

6) General terms under MLM Business:

• MRP of products must be clearly visible on the package, guarantee/warranty of the manufacturer and consumer must be given reasonable opportunity to return/exchange the product purchase within 30 days due to any defect in the manufacturing of product or the product is not useful for the desired purpose provided that the seal/protection of product is not broken.

7) Consequences of breach of guidelines:

• If the sale activities are in contravention with the above-mentioned guidelines then it will not be considered as direct selling and would be dealt with according to the relevant provisions of existing law.

The post How to structure an MLM company in India appeared first on iPleaders.

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

On Saturday I shared with you this article and told you how important it is to write and publish for progressing in the legal profession quickly. If you are inspired to write more in the new year now, today I am going to share another amazing secret: how to produce amazing articles much faster than everyone else.

I may not be a practicing lawyer, but I am a very practiced writer. I write almost every day. I get very less time to write, and I have to really innovate to write good content quickly.

Also, I have to teach tons of people how to write articles. I have begun to take weekly classes for all the LawSikho students on popular demand. After all, they are required to write and publish an article every month while they are studying with us! I need to train them to write.

So let me share with you what I have been teaching so far.

In my first session, I covered the issues of audience and selection of topic. Choosing the right topic with a clear audience in mind is critical. I would also suggest that you should have an outcome on the mind. What would be the benefit of reading your article? How will it help the reader, who is from a specific target audience? What will they remember 48 hours after reading it, if asked about what is their take away from that article? Will it be impactful? What sort of impact are you aiming for?

There are a lot of things to figure out before you start writing the article. If you are going to spend 3 hours writing, it is advisable that you at least spend 30 mins thinking through such issues and making notes simultaneously.

However, once you have decided your topic, people make the biggest mistake at this stage. Even the very advanced writers often make this mistake, and it results in them writing boring, cliched, uninspired content that takes a lot of work but doesn’t get as much appreciation or readership.

I have written articles online that have been read lakhs of times, and I had to learn the hard way.

You don’t have to because I will show you what the pitfall is and how to avoid it right in this article.

The Pitfall

The biggest pitfall is research. Most people, when they get a topic, start with a google search. The moment you do it, you have screwed up. Before you start googling or reading textbooks or any other research, there is a very important step. That is the framing of research questions.

If you start with that kind of research where you google and see what others have written already and then decide what you are going to write, then you have let yourself be influenced, not done any original thinking, shrunken the space for originality and creativity, and increased the chances of coming up with something run of the mill.

This is the biggest pitfall.

This is the step where most people mess up and end up writing average stuff.

The Cure

After you have a topic if you do not start researching, then what do you do?

The answer is: spend some time thinking and coming up with questions that you may answer in your article. And come up with the most logical questions, unadulterated by research so far.

At this stage, you may think, as most people do: how can I frame questions without research?

Yes, you can. You are not used to. But once you start trying it will work like a charm.

Examples of how to do it

Here are some examples I used in yesterday’s class for my students. I asked them to give me a topic for us to come up with these questions and a skeleton structure.

The first one we took was “Should death penalty be abolished?”

I asked the students what basic questions we must answer in that article. We got a bunch of answers. When we wrote down and arranged those questions, without ever having to do a google search, we ended up with the following structure in less than 5 minutes of discussion:

Should death penalty be abolished in India

What offences are subject to death penalty in India?

What does Indian law say about death penalty?

How has the death penalty jurisprudence evolved in India through judicial pronouncements?

5 most important supreme court decisions regarding death penalty

What are the moral, legal or jurisprudential arguments in favour and against death penalty?

• Arguments in favour of death penalty
• Arguments against death penalty
• Alternatives to death penalty

Why not just life imprisonment?

Is death penalty a real deterrent?

What will be the consequence of abolition of death penalty?

• Experience of other countries which abolished death penalty

Now doing this initial groundwork ensures that you will be able to research and write this article rapidly. Just research each of those questions and answer. Those who do not follow this technique will never be able to match those who do in output or quality when it comes to article writing.

After we were done with these, some students said, “well, this was easy because we know about this topic, but what if it’s a topic we know nothing about?”

I told them to take a topic they do not know. This time we chose “consequences of inadequate due diligence in M&A transactions”. Great. We repeated the same exercise. Again, in another 5-7 minutes we ended up with the following structure:

Consequences of inadequate due diligence in M&A transactions

Why do we need due diligence in an M&A transaction

Where do people usually go wrong in doing due diligence

Examples of big due diligence disasters in M&A transactions and how they affected those transactions

What is the process of due diligence? What are the objectives?

When is it OK to have a limited scope due diligence?

What are the risks that due diligence protects us against?

How can we know if due diligence has been done properly and adequately?

What can be done if you discover that due diligence was inadequate? What is the solution?

Can the law firm or service provider be held responsible for conducting faulty due diligence?

What kind of terms to enter into with service provider to protect against bad due diligence?

Is it important to make sure that the service provider has a substantial malpractice/professional insurance?

How to select the right service provider/ law firm for due diligence?

After the 2nd exercise people started to grasp how this is done. Then I threw them a really wild one. I said we will now work on a topic we know nothing about and then we will come up with a skeleton structure, with zero googling.

The topic I said will be “How to set up a law firm in Uzbekistan”. Surely none of us had any clue about Uzbekistan, and certainly, we knew nothing about their legal system let alone how to set up a law firm there.

And nonetheless, again after brainstorming of 10 minutes, another amazing skeleton structure was ready.

How to set up a law firm in Uzbekistan

What qualifications do you need to practice law in Uzbekistan?

What are the laws that govern the law firms and practice of law in Uzbekistan?

Who can set up a law firm in Uzbekistan?

What are the major practice areas of law firms in Uzbekistan

Restrictions on foreign lawyers in practicing in Uzbekistan

• Do foreign lawyers need any local qualification?
• Can foreign lawyers participate in arbitrations in Uzbekistan?
• Is the culture or language a barrier to entry?
• Is there enough opportunity for foreign law firms in Uzbekistan?

Can accountants practice law in Uzbekistan

What would be the business form or structure of the law firm?

What are the different types of lawyers? Is there a distinction between solicitor and counsel?

Do big 4 have a presence in Uzbekistan?

What is the paperwork required to set up a law firm?

What are the major law firms already existing in Uzbekistan?

What is the law firm culture like in Uzbekistan?

What is the outlook for the Uzbek legal industry?

One warning to keep in mind though, remember that there are always more questions that can be asked. But remember that you are not trying to write an exhaustive book on the subject, just a 1500-2000 word long article most probably.

It is possible that once we begin to research some of these questions may turn out to be redundant. You may even feel the need to add certain questions. So before you freeze the skeleton structure, go ahead and read whatever else is available in the webverse. And that is absolutely fine.

Just don’t waste a ton of time reading content and thinking it is research. That brings to the 2nd biggest pitfall of writing articles.

Bonus: 2nd biggest mistake

That is spending a lot of time researching and not simultaneously writing. When you begin to write, it’s already too late, you face last-minute pressure, don’t get to do justice to the work etc. The same story repeats. I have heard it a million times. I faced it myself when I was in college.

So you will probably relate to what I am saying if you have been trying to write articles.

To beat that there is another easy way. The 10-minute rule. If you research for 10 minutes, then you must spend the immediate next 10 minutes writing whatever you can based on the research you just read.

Otherwise, you will spend days researching and reading thinking that you are being productive when in reality you are wasting time because when you begin to write you may remember precisely little of these things you read earlier and will in almost all probability read them again anyway.

So I told you about two big pitfalls people get into when they try to write articles.

Do start writing if you haven’t and see how your life and career jumps ahead. Consider joining our amazing online courses on law, regulations and business where you can learn fantastic skills every week. We make you write and publish one article every month, among many other benefits you will want to learn more about. Just visit the course pages and read the description, you will learn a lot even from that!

The post The biggest mistake you will make while writing a law article and how to avoid it appeared first on iPleaders.

This article is written by Abhyuday Agarwal, COO, iPleaders

The introduction of the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 to tackle the black money menace has opened up a plethora of opportunities for CAs, CS, Lawyers and Consultants. The intention has been to free up funds which are stashed away in secret accounts and have them back in circulation in the Indian economy, after imposing a financial cost on the taxpayer.

What does this mean for you if you are an accountant, Company Secretary or a lawyer? As a professional, the ability to upgrade the range of services and your depth of knowledge is very important. From time to time, new statutes and regulatory instruments are issued which impose new kinds of obligations on Chartered Accountants, Company Secretaries and lawyers. You will realize that as your practice matures, you will constantly be required to advise on subjects which beyond the scope of what you studied when you acquired your CA, CS or law degree.

There are many professionals in the market who do not go beyond the regular income tax and TDS filing and audit work and therefore do not stay updated with such developments. They are unable to explore the full potential of their practice.  

On the other extreme are those professionals who possess the knowledge, but are unable to utilize it to their advantage because they depend on promoters to provide them clear and express instructions on the work to be done. They consider that they are to perform work only as per the client’s instructions. However, that is not what businessmen need.

In today’s day and age, professionals are not only required to possess knowledge and skills required to perform the work, but they must be willing to ask appropriate probing questions to discover and inquire into the possible kinds of work that a client may require. The client may come to you with X fact situation and Y instruction, but you may be required to identify and guide the client that A, B and C are also required to be done. In addition, you may be required to provide a roadmap and an estimate of the cost and the client’s resources which are required. You may need to explain the consequences of not performing these actions, so that the client is able to take an informed decision. After that, the client may confirm or decline which tasks need to be performed, and you can proceed accordingly. This ability to inquire and generate work makes a huge difference in their earning potential and the level of income they generate.

Let’s take an example here – in light of the above legal development, you need to know what opportunities are available to Chartered Accountants, Company Secretaries, lawyers, advisors and consultants. What inputs they can provide clients in connection with the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015?

Regulatory litigation

Taxpayers may require the following regulatory and litigation work in connection with Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015:

• Responding to notices issued against your client for assessment and reassessment made under Section 10 of the Black Money Act
• Filing of appeals provided under following provisions of the Black Money Act :
• Section 15 for objecting amount of tax, liability, penalty or specific orders (as mentioned) passed by the AO to the Commissioner (Appeals)
• Section 18 from an order of Commissioner (Appeals) to the Appellate Tribunal
• Section 19 from an order of Appellate Tribunal to the High Court
• Section 21 from a judgment of High Court to the Supreme Court of India
• Filing of revision under Section 24 to the Principal Commissioner or the Commissioner
• Filing of Writ Petition under Article 226 against different kinds of decisions of the tribunal or tax authorities

The forms for appeal to the Commissioner (Appeals) and the Appellate Tribunal have been provided under the Rules made under the Act (find here) as Form 2 and 3 respectively.

In general, a Company Secretary, Chartered Accountant or lawyer are all equally equipped to spearhead work in the above proceedings for a client (with the involvement of other professionals), if the client instructs and if the professional possesses the knowledge and skill-set to perform it. There may be specific aspects of the work that require a professional with a particular qualification only to perform the work. For example, a valuation task may require a Chartered Accountant to perform the valuation and an advocate may be needed to argue a writ petition. In fact, accountants can represent a client in various kinds of regulatory proceedings before income tax authorities. Involvement of all professionals will be required at different aspects of these proceedings.

Although this is regular litigation work, professionals who are not aware of the Black Money law will not be able to anticipate the work and face difficulty in obtaining client mandates.

Compliance tasks

Enabling a taxpayer to become compliant with a new law opens up a huge array of compliance work for professionals. Although no separate return is required to be filed under the Black Money Act, complying with the new law is essential to avoid penalties and prosecution under the stringent provisions. Compliance work includes:

• Salary taxation and reporting which would include source reconciliation of foreign assets and advisory services on impact areas
• Reporting in tax returns of foreign assets under Schedule of Foreign Assets as provided in all Forms of filing ITR

These compliance requirements can be performed by a Chartered Accountant or Company Secretary. Collaboration with an in-house lawyer and inputs from promoters will be necessary to ensure this work is done completely.

Also, promoters’ inputs here are often necessary as they have a 360 degree perspective of their business. In comparison, an external consultant may not always identify the need to make a filing, although the cost of not making a necessary filing can fall on the promoters later.

Strategic advice and inputs

Do you want to know how you can enhance the value of your compliance inputs from a client’s perspective? How can you charge more for your services? You can stop depending on express instructions from clients and start including compliance tasks as a component of strategic advice. Compliance is more valuable as a part of a strategic solution than as an individual task, as the task itself primarily involves filling up and submission of various forms.

How do you give such strategic advice? If you are a compliance professional (Chartered Accountant or Company Secretary), don’t expect people to come to you with specific mandates to perform compliance under this Act, as many people are not aware of the intricacies of the law. You need to instead ask inquiring questions (without sounding like you are making a promoter’s life difficult) to identify whether a something needs to be disclosed to comply with the law. If you find information which needs disclosure legally, advise the promoters, get a go-ahead to regularize any violation or irregularity and go ahead and complete the compliance task.

Strategic advice can be given to rectify some defect, or it can be given before a specific transaction is undertaken. Sometimes, after performing a task for the moment, such as filling a return disclosing foreign assets, you might decide to set up a new method of working with the client so that the manner of undertaking certain transactions in future is different. If you take this additional step to think ahead (and literally think for a client), your value for the client will be much higher than somebody else with the same level of knowledge, who does not do this. Clients want professionals whom they can trust that they will get the work done.

If you are a strategic advisor, you will be involved with your client with the entire process, including the regulatory litigation part, even if you do not represent your clients in such litigation.

How can you use this knowledge to enhance your professional growth?

How can you use this knowledge to increase your professional growth? There are a few elements you need to keep in mind for your growth as a professional or  to grow your practice:

• Knowledge of black money law (covered in the course), type of work you may be required to perform with respect to the law (covered here and in the course) and have the willingness to perform such work (comes from your own initiative)
• Ask questions to inquire and obtain information from a client to identify the kinds of work necessary to be performed, any aspects that may have been missed by a client or confirm that nothing is missed
• Set up preventive strategies for the future (where necessary), so that the client does not fall in the same situation again or is better equipped to navigate it if he or she does. Don’t worry, enlightening your client will not lead to yours losing future work – on the contrary, you will be surprised at how much more work is handed over to you pertaining to several other kinds of legal issues. In fact, that is how the big law firms have become ‘full-service’ – they started assisting some clients with a specific kind of work. When the clients liked and trusted their work and grew their business, they gave them work pertaining to all kinds of areas, so the law firms had to build capacity internally to perform all those kinds of work.
• Assist clients in building systems so that such steps are not missed out in future – don’t wait to set for the CEO’s or MD’s time alone to do this. You can simply do this with the CFO or the in-house general counsel, depending on who’s best positioned inside the company to look at this.  

• Diploma in Industrial and Labour Laws 
• Diploma in Companies Act, Corporate Governance and SEBI Regulations 

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• LawSikho Executive Certificate Course in Arbitration: Strategy, Procedure and Drafting 

The post What kind of work can lawyers, Company Secretaries and CAs perform around black money law? appeared first on iPleaders.

This article was authored by Apoorva Mandhani.

The Central Government had, in 2015, launched the Smart City Mission, vowing to develop 100 cities across the country, making them citizen-friendly and sustainable. These cities, with landscaping and amenities straight out of a sci-fi movie, envisage to use the internet of things (IoT), data, and technology to streamline services for more connected, efficient, manageable, and cost-effective communities.

With this mission having completed three years, quite a few such cities have made news for implementing innovative technology led projects like City Command and Control Center, smart parking, city surveillance, intelligent traffic management etc. Let us find out what these projects have in store for real estate lawyers!

Will due diligence survive?

One of the foremost steps for putting through a real estate deal is due diligence. It requires clearing the title of a property from any encumbrances, and hence, involves examination of documents transferring title for at least the last 35 to 40 years.

The catch is that these documents are more often than not, incomplete or even missing at times. A revenue search in the government records is the next best bet, albeit a dicey one. This is what makes the entire exercise of conducting a title search both dreadful and lucrative—dreadful because of the current condition of government records and lucrative because of the money that can hence be charged for undertaking such search.

However, one of the first steps before setting up smart cities is expected to be the digitization of government records to ease the process of land acquisition and development. The present value attributed to due diligence might, therefore, go down, simply because it is believed that the process is going to get a lot easier. However, there is good news as well:

Regulation clearances will thrive

While the need for due diligence work may go down, it is expected that the need for lawyers to help with the varied regulations to be put in place would go up. This is especially necessary because, in lack of such approvals and clearances, the project could be tied up in legal troubles for years before it finally starts generating returns on the humongous investments that go into it.

Take for example the experience with Andhra Pradesh government’s plan to build Amaravati, a “greenfield” capital city where four million people would eventually reside. The project envisages a spectacular 32-kilometre long riverfront along the verdant banks of the Krishna between Guntur and Vijayawada. It hopes to house two international airports and to become an attraction for Buddhist tourists.

However, several farmers and civil society activists have since alleged that several environmental and land acquisition norms have been violated in the progress of the project. For instance, it has been claimed that the Andhra Pradesh government has violated rules while acquiring fertile agricultural land and wetlands – nearly 40% of the total area of 33,000 acres – where some 100 varieties of grains, vegetables and fruits are cultivated. With such allegations already surfacing, it is likely that the project is going to be entangled in litigation for a while, putting investor’s money in great risk; probably discouraging future investments in such projects.

Therefore, this tells a precautionary tale, one that should be in the rule-book in the “don’ts” section. For a smart city to be sustainable in all aspects, blemish-proof environmental and other clearances will have to be put in place. This, of course, would require lawyers to step in and take charge, helping builders and financiers with such clearances, presenting another lucrative opportunity for lawyers to grab.

Project Finance

As for the source of financing, most of the smart city plans require 70 per cent of the total outlay to be funded by the Central and State Government, either through the Smart City Mission or through convergence schemes like AMRUT, Swachh Bharat etc. The remaining 30 per cent is required to be funded by the private sector, either through public-private partnership (PPP) projects or through the issue of municipal bonds / similar instruments.

PPP projects

For utilisation of PPP projects, there would a need to significantly scale up the number and size of such projects for them to be able to mobilize target private investments. This would require project finance experts at every stage, especially because of the change in the character of employing large-scale PPPs, which would now have to be implemented in the brownfield development category—an unexplored combination in the country. For the uninitiated, the fact that smart cities emanate from existing cities makes these brownfield projects, as against greenfield development, which comes up on unused lands.

In other words, large-scale PPPs have so far been limited to projects involving the construction of urban commercial infrastructure, with the Government contributing the land. However, in contrast, the government now holds the fragmented portion of land pieces in most smart city projects, requiring scaling of the PPPs.

Municipal bonds

As for the issuance of municipal bonds and similar instruments, very few cities have actually gone ahead with issuing bonds, as most smart cities could not secure investment grade rating in the credit rating exercise conducted as a precursor to bond issuance. The major reasons for sub-investment grade ratings have been attributed to issues relating to financial sustainability. This is because it is difficult to cover the cost of service delivery as user charges for key municipal services like water supply and solid waste management are inadequate.

However, this might become viable with revised policies and regulatory and institutional frameworks. The bottom line here is that the financing of smart cities is still evolving, and hence, project finance teams for such cities can expect to have a steady inflow of work over the years.

Drawing up of contracts

Lawyers would be required to render their assistance in the drafting of intricate contracts that would come up in the course of these financing options as well as construction phase. They would be needed to draw out hundreds of types of different contracts and negotiate.

For instance, the level of risk borne by a private partner in the entire set-up largely depends on the type of contract. So while in a management contract, the private party shares minimal risks with the public sector, in a lease contract, private parties take on operating and collection risks. As against these, Build-Operate-Transfer (BOT) and Rehabilitate-Operate-Transfer (ROT) contract, private partners also take on investment and financing risks.

There would also be thousands of vendor contracts, service contracts etc.

Land acquisition litigation

NITI Aayog’s new strategy paper states the economic direction this government would take if it returns to power in 2019. For land acquisition, it states that it would make Bhumi Rashi, a web-based portal to bring transparency in land acquisition for road projects, functional by March 2019. It further states that it would sensitise stakeholders on the procedures to determine the market rate, decide compensation and disbursement.

However, it largely fails to address the persistent issues pertaining to use of force, and inadequate compensation, resettlement and rehabilitation, as well as the issue of people not getting money in their banks. With no new vision on this aspect of constructing smart cities, it is likely that litigation relating to land acquisition is here to stay.

Project management

What also needs to be understood is that while it has been three years since the announcement of the government’s plans, the project is still very much a work in progress. Out of the 99 selected cities, 20 were declared in January 2016 and the last 9 were declared only this year in January.

Further, unlike any other real estate project, the sheer scale of these smart cities make it necessary to have project management consultants conversant with the laws of the land, as well as setting up of Special Purpose Vehicles (SPVs). According to experts, both of these could take anywhere between 15 to 18 months to put in place. Thereafter, a project needs to be picked, which would be taken up by the SPV in consultation with stakeholders, and then, cutting-edge technology would be required to finally implement this project. This would, therefore, require the long-term engagement of project management officials.

“PropTech” lawyers

Besides, the advent of smart cities could also lead to an onslaught of enhanced coordination between real estate and technology lawyers, to tackle the new legal challenges that these smart cities would pose. Take the cue from the pushback received by Google’s Quayside smart city in Toronto, on the issue of information privacy.

The concerns raised by the citizens, in fact, led to the formulation of a more government-friendly agreement between the government of Toronto and Google entity, “Sidewalk Labs”. Significantly, while the first agreement was largely silent on issues of privacy and data governance, the second one stated that the project will move forward under “the most privacy protected/citizen-centred set of policies and governance structures in the world, recognizing privacy as a fundamental human right.”

Anyway, this does present a rosy picture for lawyers, with several new avenues opening up to them with the development of smart cities. If you want to know more about this, you could explore this online course on real estate laws. This course will familiarise you with the corporate and legal structure used by the government for smart city development, and a whole lot more than you need to learn to capitalise on this sector, within a span of three months.

You can also do a course on contract drafting as this is definitely a skill that will be high in demand.  You will not regret if you learn M&A, institutional finance and investment law course either. Our courses will equip you to systematically learn the most essential skills to deal with the upcoming legal challenges that the economic changes are bringing forth to the legal and business world.

The post What kind of legal work will be generated from India’s ambitious plan to build 100 smart cities? appeared first on iPleaders.

In this article, Somya Agarwal discusses the provisions relating to Foreign Company Under The Companies Act, 2013.

Introduction

There are various kinds of companies like public, private or government-owned companies that operate in a country. Depending on their specific nature, suitable rules and regulations have to be formulated for each kind of company. Every country has particular rules and regulations applicable for homegrown companies. Similarly, a company operating in a country other than its home country is required to follow the rules and regulation of the given local area of operation and the home country where it was originally incorporated.

In India, a foreign company is mandated to follow certain special or modified provisions as compared to a domestic company. For instance, a foreign company at the time of making investment in India or setting up an office is required to comply with the Foreign Exchange Management Act (FEMA). Similarly, if the foreign company is involved in selling of goods or providing services then it is required to comply with the Indian tax laws.

A ‘foreign company’ is an entity which is incorporated outside India, but has a place of business in India or conducts any business activity in India in any other manner. The accurate definition of foreign company is given under the Companies Act, 2013 though the concept of ‘foreign company’ was existent in the older act as well.

Definition under the old Act: Companies Act, 1956

The erstwhile Companies’ Act of 1956 (Old Act), did not provide any definition for ‘foreign company’. Section 591, subsection 1 was the sole repository for classification of a company as foreign company under the old Act.

Section 592 (1) states that foreign companies shall mean the following two classes of companies:

1. Companies incorporated outside India which, after the commencement of the Old Act, establish a place of business within India; and
2. Companies incorporated outside India which have, before the commencement of the Old Act, established a place of business within India and continue to have an established place of business within India at the commencement of the Old Act.[1]

A place of business means premises where there is a physical or visible indication that the company may be contacted there. The Indian courts emphasized on the requirements of establishing a physical presence in India for a foreign body corporate to be considered as having a place of business in India, and consequently being categorised as a ‘foreign company’ under the Companies Act, 1956. In the matter of Willis Europe BV v. Willis India Insurance Brokers (P) Ltd.,[2] the High Court of Bombay observed that”. Section 591(1) (a) applies not to companies that carry on business in India, but to companies that establish a place of business in India.”

In determining whether a foreign company has established a place of business in India under Section 591 of the Companies Act, 1956, the High Court of Delhi in Dabur (Nepal) P. Ltd. v. Woodworth Trade Links P. Ltd.[3] held that “a company would be held to have established a place of business in India if it has a specified or identifiable place at which it carries on business, such as an office, storehouse, godown or other premises, having some concrete connection between the place and its business.”

The above text makes it evident that under the 1956 Act, the definition of ‘foreign company’ was exclusively based on condition of having established ‘place of business’ in India. The requisite of having a physical place of business restricted a lot of companies operating in India to be termed as foreign companies. Due to technological boom, various companies were operating in the country without having any physical presence, solely coordinating their functions through internet and providing services to Indian citizens.

During the overhaul of the company laws in India during 2013, definition of foreign companies was also expanded to include all kinds of companies operating in India and to regulate their functioning.

Definition of Foreign Company under Companies Act, 2013 and its scope

The term ‘foreign company’ is clearly laid down under Section 2 sub-section 42 of the Companies Act, 2013 (New Act). A foreign company is any company or body corporate incorporated outside India which,

1. has a place of business in India whether by itself or through an agent, physically or through electronic mode; and
2. conducts any business activity in India in any other manner.[4]

In order to be considered a ‘foreign company’, one has to fulfil both the abovementioned criteria. Hence, this new definition has a wider scope compared to the earlier Act. To fully appreciate the scope of the definition, it is necessary to define the terms ‘electronic mode’ as well as ‘business activity’.

Electronic Mode

The Companies (Specification of Definitions Details) Rules, 2014 defines the term ‘electronic mode’ in the context of a foreign company under Rule 2(h). The same is also defined under Rule 2 (1)(c) of Companies (Registration of Foreign Companies) Rules, 2014.

The definition of electronic mode encompasses all electronic based transactions, such as business to business and business to consumer transactions, data exchange and other digital supply transactions. It further includes all online services and all related data communication services whether conducted by e-mail, mobile devices, cloud computing, social media, data transmission or otherwise.

This definition clearly states that even if the location of the main server is outside India, it would still come within the purview of the term ‘electronic mode’. Hence, leaving no ambiguity in its interpretation.

Business Activity

The Companies (Registration Offices and Fees) Rules, 2014, defines ‘business activity’ under Rule 3. The definition of ‘business activity’ is identical to ‘electronic mode’. Rule 3 states that every company including a foreign company that carries out its business through electronic mode, whether its main server is installed in India or outside India, shall be deemed to have carried out business in India.

The sole difference being that definition of ‘electronic mode’ in Companies (Specification of Definitions Details) Rules, 2014 is applicable to only foreign companies whereas, ‘business activity’ defined under the Companies (Registration Offices and Fees) Rules, 2014 is applicable to all kinds of companies.

As per the definitions of specified terms, a ‘foreign company’ under the Companies Act, 2013 would include not just those companies incorporated outside India which subsequently established an office or a branch in the territory of India for carrying on business activity, but would extend to any foreign company which has entered into any kind of transaction with an entity or person located in India through electronic mode. By virtue of this definition of ‘foreign company’ under the Companies Act, 2013, even a foreign e-commerce website based outside India, not having any office, employees, servers, or any other sort of physical presence in India would attract the provisions of the Companies Act, 2013, if an Indian resident placed an order on such merchant website.

Foreign Company under Companies Act – Difference between the old and the new Act

At first blush the provisions of the Old Act and the New Act seem similar but the Act of 2013, expanded its scope of foreign companies and has increased the compliance requirements as well.

• The new definition of foreign company includes ‘body corporate’ as well as corporation in the definition, thus extending its scope to various entities which were not regulated in the earlier act. As the earlier act referred to only companies and not ‘body corporate’.
• The 2013 Act has done away with the requirement of having any sort of physical presence in India to carry out business in order to be characterized as ‘foreign company’ as required under the old Act. Now, the entities having any virtual presence would also come under the ambit of the new Act.

The same is evident from joint reading of Section 379 (Application of Act to Foreign Companies) and Section 2 (42) (definition of Foreign Company) of Companies Act 2013 along with Rule 2 (1) (c) (definition of Electronic Mode) of Companies (Registration of Foreign Companies) Rules, 2014 which brings to fore that there is need for physical presence, as entities with no physical presence yet having any virtual presence would also now come under the net.

• The definition of foreign company under the New Act has further widened the regulations for foreign companies controlled by Indian corporate, putting the latter under increased pressure of compliance. Foreign companies controlled by Indian corporates have been mandated to comply with the provisions of Chapter 22 along with other provisions of the New Act prescribed for companies that are incorporated in India. Essentially, equating the foreign companies controlled by Indian citizens or corporates to a domestic company that is incorporated in India.

In light of this, it can be said without doubt that the definition under 2013 Act has in a categorical manner laid down the conditions and clearly demarcated the scope of foreign company in India.

Impact of the New Definition of Foreign Company under Companies Act

The impact of the definition of foreign companies under the New Act has been two fold. First, as the scope of the definition has expanded, it covers various companies that were before eluded from the scope of the Companies Act. Second, the statutory compliance of the foreign companies have increased under the new act.

Wider Scope

Inclusion of ‘electronic mode’ and ‘business activity’ in the definition of foreign company has huge impact on the application of the Companies Act, 2013.

The ambit of term ‘electronic mode’ under the definition of foreign company is extensive enough to cover essentially all transaction carried through electronic mode. Hence, such a definition has a huge potential to impact the transactions undertaken by various foreign companies. In accordance with the new Act, the companies involved in transaction pertaining to consultancy services, financial services, e-commerce, etc. having customer base in India would be required to establish a permanent place of work in India through registration, in order to continue to operate in the country.

Currently, there are a number of foreign based websites that operate directly or indirectly in India and may be said to have a place of business in India through electronic mode. For instance, online travel companies in joint venture with several airlines selling tickets of those airlines on their online portal, airline companies who operate through their booking agents in India or Company or Body Corporate providing online coaching to Indian students.

Further, the second part of the definition of foreign company refers to any other ‘business activity’ which will now include companies in media and broadcasting business like Zee Entertainment Enterprise Limited which have foreign subsidiaries like Asia Today Limited which render satellite services in India or Indian Asset Management Companies with foreign subsidiaries in countries like Singapore and Mauritius making investments in Indian securities or Indian mutual funds. This will have huge implications on such business as they will have the burden of adhering to statutory compliance under the companies act, 2013.

Increased Compliance

The foreign companies incorporated outside India always had some provisions of the Companies Act, 1956 being applicable to them under the Part XI. Such foreign companies which would have established a place of business in India before or after the commencement of the Old Act had to comply with some of the provisions of Old Act which included submitting with the registrar charter documents of the place of business in India, its address, details of directors etc. for registration, accounts of the Indian entity, details of charges made on property in India and so on. 

The provisions applicable to the foreign companies have now been widened under the New Act. For instance, under the Old Act required the foreign companies had to provide details of charges created on property in India, under the New Act any charge created by such foreign company will have to be registered with the Registrar of Companies. They are further bound to file a statement with regard to related party transactions, repatriation of profits, etc. and get its accounts audited by a practicing Chartered Accountant in India. The new requirements of registration and other compliance will again have an impact on the operation of various companies, as it will acts as an increased burden on the foreign companies.

Amendment of 2017

Prior to enactment of Companies (Amendment) Act, 2017 (hereafter referred as “Amendment Act”)[5] there was an ambiguity as to whether Chapter 22 of 2013 Act was applicable to all foreign companies or specifically to foreign companies having less than 50% paid up capital held by Indian citizen or companies/body corporate incorporated in India.

Section 379 of the 2013 Act laid down that where not less than 50% of the paid up capital of a foreign company is held by one or more citizens of India, or companies/body corporates incorporated in India, such company has to comply with the provisions of Chapter 22 and other provisions of the 2013 Act, as may be prescribed, with regard to the business carried on by it in India, as if it was a company incorporated in India.

It failed to clarify whether Chapter 22 referring to ‘companies incorporated outside India’ applied to all foreign companies. The bare perusal of the provisions makes it clear that after defining ‘foreign companies’ in a comprehensive manner, the intention of the legislature was not to restrict the scope of applicability of Chapter 22 to a specific class of companies.

There was an urgent need to fulfill the same gap before the foreign companies could use the same lacuna in order to avoid their statutory compliance. This issue has been finally addressed by the Companies (Amendment) Act, 2017.[6]

“(1) Sections 380 to 386 (both inclusive) and sections 392 and 393 shall apply to all foreign companies:

Provided that the Central Government may, by Order published in the Official Gazette, exempt any class of foreign companies, specified in the Order, from any of the provisions of sections 380 to 386 and sections 392 and 393 and a copy of every such Order shall, as soon as may be after it is made, be laid before both Houses of Parliament….”

This amendment clarified that Chapter 22 of the 2013 Act would be applicable to ‘all the foreign companies’ irrespective of any other condition. This amendment further empowered the Central Government to exempt any class of foreign companies from complying with one or more provisions of the 2013 Act.

Conclusion

The 2013 Act and the recent amendments have clarified the scope of definition of ‘foreign companies’ to a large extent. Nevertheless, still some gaps exist under the given definition.  The Companies Law Committee in its report of 2016[7], observed that definition of the term ‘foreign company’ under the Companies Act, 2013 read with the definition of ‘electronic mode’, could result in insignificant internet based electronic transactions of a company incorporated outside India, with no adequate relation to Indian customers and no establishment in India would deem to fall under the ambit of such definition. It was further assumed by the Committee that it would be impracticable to cover companies incorporated outside India that have a mere incidental presence in India through electronic means, without the company having any actual intention of setting up a place of business in country. In light of this, it was suggested by the committee that the same be exempted from registration and other statutory requirements applicable to foreign companies under the Companies Act, 2013.

Further to such recommendations of the Committee, the 37^th Report issued by the Standing Committee on Finance (2016-2017)[8] sought to implement the same in the Companies (Amendment) Bill, 2016. Among the crucial amendments proposed under the Companies (Amendment) Bill, 2016, was the proposed amendment to Section 379 of the 2013 Act stating that “…Foreign companies having incidental transactions through electronic mode to be exempted from registering and compliance regime under the Act.”

The Statement of Objects and Reasons of the Companies (Amendment) Bill, 2016 emphasized on the need of exempting certain companies under the act. The notes to clauses of the bill further reiterated the same in order to bring clarity with respect to applicability of the provisions of the Companies Act, 2013 to foreign companies.

However, the amended Section 379 does not refer to exclusion of incidental transactions. Moreover, no Order under the proviso to amended Section 379 of the Companies Act, 2013 has been introduced in the public domain, referring to the same. Hence, the issue relating to incidental transactions still persists.

In light of the above mentioned text, the enactment of Amendment Act of 2017 has to an extent limited the overarching scope of definition of foreign company, but still there is scope of improvement in the given definition of ‘foreign company’ under the Companies Act, 2013

[1] Section 591, Companies Act, 1956.

[2] Willis Europe BV v. Willis India Insurance Brokers (P) Ltd. (2011 (113) Bom LR 1842). 

[3] Dabur (Nepal) P. Ltd. v. Woodworth Trade Links P. Ltd. [2012] 175 Comp Cas 338 (Delhi).

[4] Section 2 (42), Companies Act, 2013.

[5] Companies (Amendment) Act, 2017 notified on January 8, 2018.

[6] Section 77 of Amendment Act amended Section 379 of the Companies Act 2013 the same being notified on February 9, 2018.

[7] Report of The Companies Law Committee. New Delhi, Dated 1st February, 2016.

[8] Standing Committee on Finance (2016-17) “The Companies (Amendment) Bill, 2016 (Ministry of Corporate Affairs)” Sixteenth Lok Sabha.

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In this article, Aswathi Vakkayil discusses Additional Written Statement under Order 8 Rule 9 of CPC,

Introduction

The expression ‘additional written statement’ has not been defined in the Civil Procedure Code, 1908 (C.P.C). According to a legal dictionary, the term ‘written statement’ means a pleading for defence. In other words, a written statement is a reply of the plaint, in which defendant deny or admit each and every allegation or facts given in the plaint. However, an additional written statement is different from a written statement. As filing the written statement is the right of the defendant but the additional statement is based on the discretion of the court. Further, in written statement defendant can put his case also under the heading additional plea, and can state new facts or ground which is necessary to defeat the opponent. If the defendant wants to put his own claim against the plaintiff he can put it by way of set-off and counterclaim u/o 8 Rule 6 and 6A of C.P.C. However, once the written statement is filled the defendant cannot file a counterclaim or set off, unless it is an additional written statement.

Additional Written Statement under Order 8 Rule 9 of CPC

The rule 9 of Order 8 was omitted by the CPC (Amendment) Act, 1999 (46 of 1999), has been restored by CPC (Amendment) Act, 2002 (22 of 2002) with a fixed a time period. The effect of the change is that subsequent pleadings shall be continued to be filed and the court shall fix a time for presenting the same, which shall be not more than thirty days.
Merely because the amendment sought is alleged to be inconsistent with the previous case of the defendant, it is not a good reason for rejecting the application of the defendant for amendment. As per general rule, in cases of this nature the leave to amend or to file additional written statement is granted unless the party filing for amendment is acting malafidely  or by the parties own blunder if some injury inflicted to his opponent which cannot be compensated by award of costs; otherwise whether the original omission arose from negligence, carelessness, or accidental error, the defect may be allowed to be remedied if no injustice is done to the other side.

Legal provision for an additional statement

Before Amendment Act, Order 8, Rule 9 under the nomenclature “subsequent pleadings” read as follows :

“9. No pleading subsequent to the written statement of a defendant other than by way of defence to a set-off or counter-claim shall be presented except by leave of the Court and upon such terms as the Court thinks fit, but the Court may any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same.”

By the Amendment Act of 2002, Rule 9, Order 8 was re-enacted as follows :

“9. Subsequent pleadings.– No pleading subsequent to the written statement of a defendant other than by way of defence to set off or counterclaim be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same.”

In pursuance to the amended  Rule 9 of the Order 8, the Court was given power under extraordinary and in rare circumstances to require at any time written statement or additional written statement to be filed in a case within the outer limit of 30 days to be fixed by the Court. The only difference between the old Code and the new Code as far as Order 8, Rule 9 is concerned, is that in old Code it was the discretion of the Court to fix the time for presenting the written statement, nonetheless, in the new code there is a fixed period of 30 days for presenting written statement or additional statement. Hence, after amendment, the Court may permit the filing of the written statement or an additional written statement from any of the parties, but the Court must have to fix an outer limit for presenting the statement which should not be less than 30 days. Moreover, the power under Order 8, Rule 9 is to be used only in exceptional cases and for reasons recorded in writing and cannot be exercised by the defendant as a matter of right. Such exercise of discretion must be judicial and not capricious and such right must be keeping with the spirit of the amended Code.

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Can new ground of defence be included in the additional written statement?

No pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counterclaim shall be presented except by the leave of the court and upon such terms as the court thinks fit, but the court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same. But any ground of defence which has arisen after the institution of the suit or the representation of a written statement claiming a set-off may be raised by the defendant or plaintiff, as the case may be, in his written statement or additional written statement.1

When an additional written statement cannot be filed?

It is the discretion of the court to accept the request for an additional written statement but in certain cases, the court has been empowered to strike out the pleadings.2 The following are the matter when the court may strike out pleadings at any stage  of the proceedings order to be struck out or amended any matter in any pleading–

“(a) which may be unnecessary, scandalous, frivolous or vexatious, or

 (b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or

 (c) which is otherwise an abuse of the process of the court.”

Judicial precedents

It has been held by Court that if the defendant introduces a new case, it is fair to allow the plaintiff to file his subsequent pleading.3 Also, it has been laid down by the court that If the plaintiff amends (with leave) his plaint, the defendant should be given leave to file a subsequent pleading.4 Conversely, if the defendant amends his written statement, then leave should be granted to permit the plaintiff to file his additional pleading, to react to it.
The leave to file an additional pleading may be granted to take into account subsequent events, occurring after the filing of the suit and to avoid multiplicity of suits.5 Further, in the case of Shiva Kumar Singh v. Kari Singh, that when a minor attains majority during the pendency of litigation and is not satisfied with the pleading filed by the guardian ad litem, the minor should be given leave under this rule.6

Olympic Industries v. Mulla Hussainy Bhai Mulla Akberally & Ors – Mere delay is not sufficient to refuse amendment of pleadings or an additional written statement.

Furthermore, in case of Olympic Industries v. Mulla Hussainy Bhai Mulla Akberally & Ors.7 the Hon’ble Supreme court held that even by filing an amendment or additional written statement, it is open to defendant to add a new ground of defence or to substitute or alter the defence or even to take inconsistent pleas in the written statement so long as the pleadings do not result in causing grave injuries/irretrievable prejudice to plaintiff. It was further observed that mere delay is not sufficient to refuse amendment of pleadings or an additional written statement. If there is delay amendment of pleadings or filing of an additional written statement under Order 8 Rule 9 of the Code of Civil Procedure, 1908 where no prejudice was caused to the party opposing such amendment or acceptance of additional written statement then it could be easily be compensated by cost.

Apart from that, even if the examination of a prosecution witness or his cross-examination is over, then also, it was open to the court to accept the additional written statement filed by the other party by putting some cost penalty for the delay.

Is amendment of pleadings different from the additional written statement?

Rule 17 of Order VI provides for amendment of pleadings. A pleading shall mean plaint and written statement. 8 If the plaint is amended, the defendant gets a right to amend his written statement to answer the contentions put forward in the amended plaint. The defendant may file an additional written statement in respect of the matters covered by the amendment of the plaint.

While additional written statement is governed by Rule 9 of Order VIII which provides that no pleading subsequent to the written statement of a defendant other than by way of defence to set off or counterclaim shall be presented except by leave of the Court and upon such terms as the Court thinks fit within a fixed period a time for presenting the same  of not more than thirty days for presenting the same.9 But the Court may, at any time, require a written statement or additional written statement from any of the parties. As a matter of practice, Courts allow the additional written statement to be filed after the plaint is amended. Such practice is recognised by the Supreme Court in  case of Gurdial Singh and others v. Raj Kumar Aneja and others.10

Analysis

From the discussion above it can be analysed that the Court can grant leave on such terms as it thinks fit, however, on its own at any time it, can require a party to file written statement or an additional written statement from any of the parties and fix the time period, once the leave is granted, either the party may file a supplementary statement 11 or the dependant upon the allegations made in the plaint may make additional pleas 12. However, no supplemental written statement can be filed after the Plaintiff’s case is closed. Rule 9, therefore, invests the Court with the widest possible discretion and enables it to accept a written statement filed subsequently, after the settlement of the issues upon such terms as the Court thinks fit.13

It may also be worthwhile to notice that the rules of procedure like the provisions of Order 8, Rule 9 of the Code of Civil Procedure are aimed at not only advancing the cause of justice but also doing substantial justice between the parties. In no case, the rule of procedure can be brought to be interpreted in a manner, which may thwart the judicial process. The ultimate aim of all laws including procedural laws has to finally set at rest controversies between the parties. 14

Thus, while allowing additional written statement or refusing to accept the same, the court should only see that if such additional written statement is not accepted, the real controversy between the parties could not be decided. Hence, the last determining factor is whether filing an additional written statement of there is no injustice or prejudice caused to the other party and also it would help that would help the court to decide the real controversy between the parties.

Conclusion

It can be concluded under Order VIII Rule 9 of the Code of Civil Procedure while filing an additional written statement, it is open to the defendant to add a new ground of defence or substituting or altering the defence or even taking inconsistent please in the written statement as long as the pleadings do not result in causing grave injustice and irretrievable prejudice to plaintiff or displacing him completely. It is a well-established principle that the courts should be more generous in allowing the amendment of a written statement than in the case of the plaint. Further, it is the duty of the Judge to prevent misuse of the pleadings by a litigant. The courts have to ensure that what could not be achieved by getting the pleading amended should not be allowed to be got over, by filing reply or rejoinder as the case may be and vice versa.

Endnotes

1.  Order VIII, Rules 8 and 9 of C.P.C
2.  Order VI Rule 16 CPC
3.  Shakoor v. Jaipur Development Authority, AIR 1987 Raj 19.
4.  Salicharan v. Sukanti, AIR 1979 Orissa 78.
5.  Ramaswami Naidu v. Pethu Pillai, AIR 1965 Mad 9.
6.  AIR 1962 Pat 159
7.  [2009] 15 SCC 528
8.  Order VI Rule 1
9.  Pt. Govind Ram v. Ram Saroop, AIR 1999 JK 63
10.  AIR 2002 SC 1003
11.  Nemichand Burad v. Shri Jorawarmal, AIR 2005 Raj 235
12.  GTL Ltd v. Maharashtra Rajya Rashtriya Kamgar Sangh, 2006 (3) MHLj 646
13.  Binda Prasad v. United Bank of India Ltd., AIR 1961 Pat 152; Dineshwar Prasad Bakshi v. Parmeshwar Prasad Sinha, AIR 1989 PAt 139.
14.  Pt. Govind Ram v. Ram Saroop, AIR 1999 JK 63.

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In this article, Aswathi Vakkayil discusses Rights of a Woman during Interrogation.

Introduction

Interrogation refers to an attempt to get a suspect to confess something, however, it is different from an interview as that is done by the police to gather information for the investigation. Nevertheless, it is very important to ensure that the interview of witnesses and interrogation of suspects/accused to elicit the truth should be done in a professional manner by the investigating officer.1 The National Police Commission in its 3rd report has mentioned that the power of arrest was one of the chief sources of corruption in the police. The report of the commission suggested that about 60% of the arrests made the police were either unjustified or unnecessary.2 Hence it is fundamental for every woman to know their rights during an arrest or interrogation.

Rights under Indian Law

India has positively taken steps to imbibe all the International norms and standard policies. The following are the rights provided to all the women during an interrogation:

1. Right to Equality

Article 14 of the Constitution guarantees equal protection before the law and the courts not only as regards to substantive laws but procedural laws as well. It means that all litigants, similarly situated, irrespective of whether the person is accused or not, are entitled to same procedural rights for relief and defence. People who all are in the same ‘class’ should be subjected to the same law, there cannot be selectivity within a class. If within the same class some are subjected to a more drastic procedure than, others, then it is discriminatory and bad under Article 14. However, the Constitution not only grants equality to women but also empowers the State to adopt measures of positive discrimination in favour of women under Article 15(3) of the constitution. This inherently protects the right to freedom from discrimination.

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2. Presumption of Innocence

Our laws are based on Common Law and equality of law. One of the important and well-known principles is that a person is believed to be innocent until the guilt is proved against him. This principle is called the Presumption of Innocence. In other words, accused is entitled to take advantage of reasonable doubt in respect to his crimes. Hence, even if a woman is arrested as an accused for interrogation the person is to be considered as an innocent till her guilt is proved before the court.

3. Right against Self-Incrimination and the right to silence 

The right to silence is a legal principle which guarantees an individual the right to refuse to answer questions from law enforcement officers or court officials during interrogation. Further, there is right against self-incrimination which is incorporated in clause (3) of article 20 of the Constitution. The ‘right to silence’ principle has its roots in common law. This principle means that courts or tribunals of fact should not conclude that a suspect or an accused is guilty merely because he has refused to respond to questions put to him by the police or by the Court. Moreover, evidence obtained in a manner that violates these rights is excluded if such evidence is admitted then it would render the trial unfair or otherwise be detrimental to the administration of justice.

4. Right to Freedom from Coercion, Duress, Threat, Torture or harassment

The person who is arrested and interrogated has to be produced before the magistrate within twenty-four hours from the time of his/her arrest. This period excludes the time taken in the journey.3 Hence, no arrested person can be detained longer than 24-hours.4 Manhandling and handcuffing at the time arrest are illegal if done unreasonably. Handcuffing is not a general procedure it is only to be made on reasonable grounds. Also, the escorting officer has to inform the reason for handcuffing to Judicial Officer before whom the accused is going to be produced.5 The detainee has the right to not be ill-treated, abused or tortured while in the custody during interrogation and investigation. Further, the detainee should not be subjected to more restraint than what is necessary to prevent his escape.6 Furthermore, no person can be induced or threatened or coerced to answer any question.

5. Right to be informed of the charges

The investigating officer has to give a written order for calling anybody for interrogation at the police station. If the person is arrested then she should be informed of the grounds of arrest by the police. Also, the police should also inform the arrested person about all the rights that a detained person is entitled to.7 Hence, every person is entitled to know why he or she is being arrested or questioned.8 And has the right to question the validity of the arrest if the warrant is unlawful. It is the duty of the police officer to inform her relative or friend about her arrest and the place of detention.9

6. Right to Bail

To be released on bail when arrested for a bailable offense and this right should be informed by the police officer to the person who is arrested.10 And if it is a female who is arrested for a non-bailable offence, even if the offence is very serious (punishable by death penalty even), the court can release her on bail.11

7. Right to the presence of Counsel during Interrogation

Detainee has the right to meet and consult a lawyer of his/her choice. The arrested person has the right to consult a lawyer during the interrogation also but not throughout the interrogation period.12 The right has been enumerated under Sec. 41D and Sec. 303 of  CrPC.

8. Right to Privacy

Right to privacy now has become part of fundamental rights.13 Females can be searched by only another female with strict regards to privacy and decency 14 Further, female suspects must be kept in a separate lock-up in the police station. They should not be kept where male suspects are detained Right to privacy also includes the right to protect the identity, in case of the rape victim. It is the duty of investigating officer that her identity shall not be disclosed by anyone including the media.

9. Right to free legal aid

It is the right of every woman to receive free legal aid in order to promote their welfare.15 It usually happens that when women are unaccompanied by a lawyer they are often held wrong or humiliated. Hence, it is also the duty of the police to immediately inform the nearest legal aid committee about the arrest of an accused seeking legal aid.16

10. Right to virtual complaints

As per the directions of the Delhi Police, in case a woman is unable to go to the police station to lodge a complaint then she can lodge the same via a registered post or an email. The senior police officer of the station which has received the letter has to forward the email or registered post to the Station House Officer of the area of crime for proper verification of the document so that an FIR can be lodged.

11. Right to Zero Fir

Zero FIR is an FIR that can be filed in any police station regardless of the place of incidence or jurisdiction.17 In 2013, Delhi Police announced that a woman can file a Zero FIR and the police have to accept it exactly as she describes and has to be initiated on the statement made by her. In 2007, a Supreme Court ruling suggested that any police officer who refuses to lodge a complaint will be suspended and even face a jail term. A police officer who fails or refuses to lodge your complaint is eligible to receive from 6 months to 2 years of jail.18

12. Right to no arrest

By virtue of Rule 81, women, minors and persons of unsound mind are exempted from arrest.19 Further, Sec. 56 of the Civil Procedure Code,1908 prohibits the arrest or detention of women in execution of a decree for money. A general rule is that females can say no to arrest if it is done before sunrise or after the sunset. Females cannot be arrested without the presence of a lady constable and though no female can be arrested after sunset or before sunrise but in exceptional cases where the police have the written order from the magistrate. It usually happens in cases where a serious crime is committed by a female and the arrest is important to serve justice. It is necessary that women should be given a separate locks ups is they are arrested.

13. Right to not being called to the police station

Women cannot be called to the police station or anywhere else for examination as a witness. They can be questioned only at their residence. Legal help or help of a friend during interrogation is allowed.  In the case of rape and sexual assault, the victims of such crimes cannot be forced to go to the police station to provide their statement. It is also necessary that women can be questioned in the presence of women constables at their home itself.20 Moreover, if the investigating officer requires the attendance of a woman as a witness then she cannot be called at any place other than the place where she resides .

14. Right to doctor’s assistance

It has been held by the Supreme Court that the preservation of human life is of paramount importance. The patient whether he/she is an innocent person or be a criminal, it is the obligation of those who are in charge of the health of the community to preserve life. Further, it is required that the medical examination of the female should be made by female medical practitioners and this had been embodied in Sec. 53(2) of Cr. P. C.

Additional responsibilities to be fulfilled by the Investigating officer during interrogation

• It is mandatory that the names and other particulars of police personnel dealing with the interrogation and arrest of the person(s) are entered in the register. It is compulsory for investigating officers to wear clear, legible and visible identification tags while questioning and arresting someone.22
• The police must record in a register the identity of all police officers who conduct the interrogation of the arrested person.

Remedies in case your rights have been violated

• You can file a complaint with the Police Complaints Authority. These are special bodies that examine complaints about the police from the public. Find out if there is one that has been set up in your state.
• You can file a writ petition directly under Article 226 of the Constitution of India in the High court or under Article 32 of the Constitution in the Supreme Court. If the court is convinced that there has been a violation of your fundamental right then it would direct the concerned authority to register the complaint or order accordingly as it deems fit.
• In case a person has been arrested and detained unlawfully or wishes to make  a complaint against any wrongful act by the police, he can complain to the

      ➤ Superintendent of police of that district and other senior police officers

      ➤ Courts; and

      ➤ State Human Rights Commission/ National Human Rights Commission

• You can even write down your grievance in a letter and send it to the High Court or the Supreme Court and if the court feels that your complaint deserves attention then it can treat this letter as a writ petition.

Rights under International laws

• Police and security forces are mandated to enforce the law in their countries as it is their responsibility to serve and protect people and communities and, in particular, to prevent and uncover crime, to ensure that public order is maintained. Every nation has to ensure that their domestic legal framework is in consonance with and respect international human rights law. The IPC concentrates its dialogue with law enforcement agencies on a core set of human rights and following are certain standard policies laid down to be complied with while an interrogation by the Police/ Security forces23 :
• Though the statements by suspects are a relevant source of information in the investigative process. The law enforcement officials should, however,  avoid relying too heavily on them and attempt as far as possible to obtain objective evidence that helps to confirm (or otherwise) a suspect’s statement;

• Interrogation of the suspect must be carried out in full respect of fundamental rights, in particular, the presumption of innocence, the right not to be compelled to testify against oneself or to confess guilt;
• There is a total prohibition at all times on torture and other forms of cruel, inhuman or degrading treatment. As these treatments have a long-lasting detrimental impact on the victims, the law enforcement agency as a whole, society in general and the justice system. No exceptional situations may justify a departure from this rule and that must be constantly affirmed by the policymakers. The laws made should be such that it takes a range of measures to prevent torture from occurring, including a clearly regulated investigation and interrogation process and respects additional judicial safeguards;

• In case of planned arrests, careful preparation is required to be done based on sound intelligence as regards to the location, possible risks for others, etc. and also all possible precautions is to be taken by the officers to protect the uninvolved people;
• An arrested person must be interrogated in full compliance with, in particular, the presumption of innocence, the right not to be compelled to testify against oneself or to confess guilt, the prohibition of harassment or any other forms of inhumane treatment;
• One safeguard is the proper recording of all relevant details of the interrogation (duration, intervals, the identity of all those present);
• The State is responsible for the well-being of all those in its custody. That includes responsibility for the whereabouts of those people and consequently for measures to prevent enforced disappearances.24
• Every person who is deprived of his/her liberty should be treated with humanity and their inherent  human dignity should be respected.25

Rights specifically for Women under International Law

• Women deprived of liberty may not be subjected to discriminatory treatment; they must be kept separate from male detainees and supervised by female officials and it should be ensured that women detainees are protected against sexual violence.26
• Anyone who has been subjected to unlawful arrest or detention has an enforceable right to compensation.27
• When women are arrested or interrogated, it is should be done under the supervision of a female official. Further, if body search of women is to be carried out then it should only be done by a female officer.  
• It is the duty of the law enforcement agencies to ensure that the women are not treated in an undignified manner while the officers administer justice. And has to ensure that there is a prompt response to incidents of crime and to they investigate such violence meticulously.

Conclusion

Despite constitutional safeguards provided in Article 22 of the Constitution, there are often allegations of misuse of the power of arrest by the police. At the same time, the crime rate is increasing in the country hence it is essential to be aware of the rights entitled to women under the Law. Further, the police investigator has to ensure that there is a fine balance between the interests of the society and the rights of the accused. The new witness protection scheme that has been established will also help the witness to protect their rights while interviewed. Though India has imbibed all the international norms and standard policies however certain rights such as the right to have an interpreter or right to compensation if the accused is wrongly accused are not expressly mentioned under the Law.

Endnotes

1. Police Investigation Special Reference to Criminal Justice System http://shodhganga.inflibnet.ac.in/bitstream/10603/45012/12/12_chapter07.pdf
2.  Law Commission of India, Consultation Paper On Law Relating To Arrest, Part I, http://lawcommissionofindia.nic.in/reports/Annexure%20III%20of%20177th%20report.pdf.
3.  Art.22(2), Constitution; Sec. 57 & 76, Cr.P.C
4.  Article 22(1) and 22(2)
5.  Prem Shankar Shukla v. Delhi Administration, 1980 SCR (3) 855.
6.  Sec. 51, Cr. P.C
7.  Art. 22(1), Constitution; Sec. 50, Cr.P.C.
8.  Section 23 of the Bill of Rights Act
9.  D.K. Basu v. State of West Bengal, (1997) 1 SCC 416.
10. Sec. 50, Cr.P.C
11.  Sec. 437, Cr. P.C
12.  Art.22(1), Constitution; D.K. Basu v. State of West Bengal, (1997) 1 SCC 416.
13.  Justice K.S Puttaswamy (Retd.) v. Union of India and Ors, WP (C) 494 of 2012.
14.  Sec. 51, Cr. PC
15.  Article 38(1) and Article 21 of the Constitution
16.  Sheela Barse v. State of Maharashtra,1983 AIR 378.
17.  See also: Diksha Trivedi, Registering FIR in a Police Station without Jurisdiction: Is it Possible?,iPleaders, (Nov 5th, 2015) https://blog.ipleaders.in/registering-fir-outside-jurisdiction/
18.  Sec. 166A of Cr. P.C.
19.  Sec.81(b) of Civil Procedure Code,1908
20.  Sec. 160, Cr.P.C.
21.  160 of Cr.P.C
22.  D.K.Basu v. State of West Bengal, (1997) 1 SCC 416.
23. International Rules and Standards For Policing, https://www.icrc.org/en/doc/assets/files/other/icrc-002-0809.pdf.
24.  International Convention for the Protection of all Persons from Enforced Disappearance (CPED), Article 17.
25.  International Covenant on Civil and Political Rights, Article 10(1)
26.  Standard Minimum Rules for the Treatment of Prisoners, No. 8(a)
27.  International Covenant on Civil and Political Rights,  Article 9(5).

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This article was authored by Apoorva Mandhani.

Having spent my childhood in a small city like Kanpur in Uttar Pradesh, I grew up surrounded by the quintessential idea of the “Great Indian Dream”— of earning enough for roti, kapda aur makan (food, clothing and shelter) and retiring into the night comfortably. My dreams, of course, shaped up very differently (credits: a shift to Mumbai, law school education and the general millennial mindset).

The very existence of the idea of this dream, however, is a decades-old proof of the obsession that this country has with real estate. It is an asset that they can touch and feel, unlike a financial asset, and that has been a great psychological motivator for them for quite some time now.

Naturally, the practice of real estate law has managed to stay afloat largely owing to this obsession. Lucky for us, the obsession is here to stay and so are the opportunities in the field, making it quite “lucrative”. This article explains why.

Also, notice the double inverted commas in which I place the word “lucrative”, in the heading of this article. Despite the colloquial meaning of the term, I intend on examining the “lucrativeness” of the practice on factors including, but not limited to, the monetary gains that it promises.

Industry potential

The real estate industry, in general, is flourishing. According to data released by the India Brand Equity Foundation, which is a government trust, by 2025, the country’s real estate sector is expected to contribute 13 per cent of the country’s GDP. By 2030, it is expected to reach US$ 1 trillion. Without relying on any more numbers, it would suffice to say that lawyers feed off such a healthy industry and a lavish five-course meal sort of feed off, at that.

As regards the changes brought in by the Real Estate Regulation Act, the long-term prospects of these changes are pegged as positive. This expected growth surely spells good news for all lawyers—big and small—in the industry. Plus, the ecosystem is a lot more trustworthy now, thereby reassuring real estate purchasers and investors.

Making your way up the ladder

Now, we’ve established that pursuing real estate industry, in general, does hold promise in India, consequently making room for lawyers practising the related law.

Additionally, the practice requires an understanding and willingness to take on several laws. For instance, in addition to real estate laws, the lawyer also needs to be well versed with the drafting of contracts as well as the intricacies of the dispute resolution mechanism involved. The upside of this is the knowledge pool that you are expected to master. Further, it might make it that much easier to switch out of the practice, on the off chance of you not wanting to deal with concrete anymore.

Furthermore, the effects of a healthy real estate industry are bound to trickle down to lawyers at every stage of their career. So according to a young lawyer practising in Maharashtra, a professional who has mastered the art of creating title deeds can make easy money, starting from Rs. 4,000 to Rs. 12,000 per project, by freelancing for those desirous of understanding the flow of title for prospective purchases, mortgages, etc. The opportunities are only going to diversify and get more challenging as you make your way up the ladder.

The multiple avenues

As for the variety of paths that can be taken within the industry, here’s a snapshot:

• Even something as basic as notary shops for legal documents could fetch you Rs. 150 to 200 per document. With a potential of beginning with 20 to 30 such documents every day, you could easily make around Rs. 4,000 per day.

• As for drafting of conveyancing contracts, lawyers beginning their practice could make around Rs. 3,000 for transactions in tier-2 cities and Rs. 5,000 in tier-1 cities. With a more established client base, this is sure to fetch a good amount of monthly income. A good law firm would easily charge INR 30,000 for the same.

• As mentioned previously, even title searches can pay Rs. 4,000 to Rs. 12,000 per project, for simpler freelancer assignments.

• Several large real estate companies have in-house legal departments as well, willing to hire freshers for annual salaries ranging between Rs. 3 lakhs to Rs. 6 lakhs. With experience, you could go up to INR 40-50 lakhs per year as general counsel of a large real estate company.

• For those interested in government jobs, this could be the golden opportunity that you’ve been waiting for. The government is the largest owner of real estate in the country, and hence, ends up hiring quite a few real estate lawyers. Besides, it also needs seasoned professionals for several other sectors which might include recovery or valuation proceedings.

• For those interested in getting out and battling it in courts, tribunal or other forums, real estate is heavily litigated and hence, requires litigation lawyers to step in. The disputes involve high-stakes and are usually very rewarding, monetarily. They usually charge separately from drafting and thereafter, on a per hearing basis. Per hearing charges of an experienced lawyer in Delhi could easily run into Rs. 30,000 to 1 lakh. Famous senior counsels can charge 10-15 lakhs per hearing.

• Now, RERA has introduced a whole bunch of real estate tribunals, providing an opportunity that not many lawyers get—an opportunity to establish your credibility and practice much faster than compared to already established forums.

• Several big law firms, as well as boutique real estate firms,  look for fresh talent for their practices.

• As for cities, while metros have their law firms and practice is a bit saturated, especially with a declining number of projects in the metropolis and unsold inventory having built up, tier-2 cities have a booming real estate market without a proportional increase in lawyers practising real estate law. The next level of amazing real estate work will in all probability come from tier 2 and 3 cities.

Not all sunshine

Nevertheless, there are several challenges that a real estate lawyer is expected to tackle during the course of any transaction.

The first step in any real estate transaction is clearing the title of a property from any encumbrances. The exercise involves examination of documents transferring title for at least the last 35 to 40 years. The catch is that these documents are more often than not, incomplete or even missing at times. A revenue search in the government records could be your next best bet, albeit a dicey one.

Besides, with the high stakes involved, it shouldn’t come as a surprise that real estate is heavily litigated. This is good news for you if you’re the plaintiff and you convince the judge of the existence of a prima facie case. You can succeed in locking down the property in dispute for a good decade. Naturally, you could find yourself in hot waters if you’re the defendant.

And then there’s all the red-tapism. There is a plethora of rules and regulations under the various laws governing the set-up. Several approvals are required at every stage of the construction and any shortcoming can prove fatal.

However, all this doesn’t need to spell bad news for those looking to enter the field. This only means that not just is there plenty to take up and learn, but also that there’s plenty of space for more real estate lawyers to scoop in.

Final word

So, we’ve established that real estate practice pays well, has the plethora of responsibilities and avenues that you could choose from, and also has great growth prospects, especially in the aftermath of the overhaul of the industry.

However, before parting, I’d be disappointed in myself if I do not add another perspective to this “lucrativeness”—that of you having an interest in the practice. We often tend to settle on a career by ignoring this very important aspect. While it is, of course, prudent to assess the ground situation and available cavalry before entering a battlefield, the battle will definitely be worth fighting if your heart’s in it. So I’d suggest, get some hands-on experience in the field during your next internship and see for yourself!

As for a sneak peek into the world of real estate practice from the comfort of your bed, take a moment to check out this wholesome and practical, 3-month long online course on real estate laws. One of the best features of the course is the 360-degree perspective that it provides. So it covers areas of interest from the point of view of promoters of a real estate project, developers, home or office owners as well as real estate agents. If you’re still in two minds, request for some free samples and I’m certain they won’t leave you disappointed!

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In this article, Yogesh Sharma discusses Res Judicata under Civil Procedure Code, 1908.

Origin of the doctrine of Res Judicata

The doctrine of the Rest Judicata is one of the oldest doctrines in the history of the world. Res judicata “is as old as the law itself”[1]. “Res judicata pro veritate accipitur” is the Latin maxim for the doctrine of the Res Judicata. Roots of the doctrine of Res Judicata can be found in the various ancient legal systems. Starting from the issue preclusion in the Germanic estoppel to the latter on the Roman res judicata which was instigating the truth by looking into the judgmental effect[2]. Romanic view changes the evolution of res judicata from issue preclusion to claim preclusion.

In the early days of England, courts were disorganized and underdeveloped and there was no existence of concept like res judicata. But after this doctrine of Res Judicata has been emerged in England. At the initial stages, courts in England was using foreign analogies but after court revised and drafted their own doctrine of the Res Judicata.

Indian Legal system adopted the doctrine of Res Judicata from the common law. The principle of res judicata was included in Section 11 of the Civil Procedure Code. After the Civil Procedure code, Administrative Law accepted the applicability of the res judicata. Afterward, it was accepted by other statutes and acts and the doctrine of res judicata started growing in the Indian Legal System.

The doctrine of Res Judicata is originated from 3 Roman maxims:

1. Nemo debet lis vaxari pro eadem causa – It  means that no person  should be vexed annoyed, harassed  or vexed two times for the same cause;
2. Interest republicae ut sit finis litium – It means that it is in  the interest of the state that there should be an end of litigation; and
3. Re judicata pro veritate occipitur – Decision of the court should be adjudged as true.

Res Judicata under Section 11 Civil Procedure Code, 1908

The doctrine of Res Judicata has been defined in Section 11 of the Civil Procedure Code. The doctrine of the Res Judicata means the matter is already judged. It means that no court will have the power to try any fresh suit or issues which has been already settled in the former suit between the same parties. Also, the court will not try the suits and issue between those parties under whom the same parties are litigating under the same title and matter are already been judged and decided by the competent court. When the court finds any suits or issues which has been already decided by the court and there is no appeal pending before in any court, the court has the power to dispose of the case by granting a decree of Res  Judicata. This doctrine is based on the premises that if the matter is already decided by the competent court then no one has rights to reopen it with the subsequent suit. It also enacts the conclusiveness of the judgments as to the points decided, in every subsequent suit between the same parties[3]. The doctrine of Res Judicata is applied by the court where issues directly and substantially involved between the same parties in the former and present suit, are same. For eg, It may be that in former suit only part of the property was involved whereas in present or subsequent suit whole property of the parties is involved Than court will grant a decree of Res Judicata.

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Scope of the doctrine of Res Judicata

The scope of the Res Judicata is not restricted to Section 11. Res Judicata is the principle which is also applied to Administrative Law, constitutional law & Criminals matters. It is applicable to other legislation and acts too. In the case of the Sheoprasad Singh v. Ramnandan  Prasad Singh[4], Sir Lawerence Jenkins observed the rule of Res Judicata as “the rule..while finding on ancient precedent is dictated by a wisdom which is for all time.” In the case of Daryao vs. the State of UP[5], the court stated that for this rule there would be no end to litigation and no security for any person; the rights of the person is involved in the endless confusion and great injustice done under the cover of the law.  The doctrine of the Res Judicata is based on the Public policy and this principle is intended not only to prevent a new decision but also to prevent a new investigation so that the same person cannot be harassed again and again in various suits upon the same question.

Essentials of Res Judicata under Section 11 CPC

Before granting a decree of Red Judicata following conditions should be satisfied first:

1. There must be two suits one former (previously decided)  suit and the other subsequent suit.
2. Parties of the former and subsequent suit or the parties under whom they or any of them claim should be the same.
3. The subject matter of the subsequent suit should be identical or related to the Former suit either actually or constructively
4. The case must be finally decided between the parties
5. The former suit should be decided by the court of competent jurisdictions
6. Parties in the former as well as in Subsequent suit must have litigated under the same title

Exceptions to the Plea of Res Judicata

1. Judgment in original suit obtained by the fraud – if a court thinks that the judgment of former suit is obtained by the fraud, then the doctrine of the res judicata is not applied.
2. When previous SLP is dismissed – When special leave petition is dismissed without adjudication or decision then res judicata should not be applied. For obtaining  Doctrine of Res Judicata, the formal suit should be decided finally by the competent court.
3. Different cause of action – Section 11 will not be applied when there is a different cause of action in the subsequent suits. The court cannot bar subsequent suit if it contains the different cause of action.
4. When there is Interlocutory Order – Interlocutory order is the interim order, decree or sentence passed by the court.  A principle of the Res Judicata will be not applied when an interlocutory order is passed on the former suit. It is because in Interlocutory order immediate relief is given to the parties and it can be altered by subsequent application and there is no finality of the decision.
5. Waiver of a decree of Res Judicata –  Decree of Res Judicata is a plea in the bar which party must waive. If a party did not raise the plea of res judicata then the matter will be decided against him. It is the duty of an opposite party to make the court aware about the adjudication of matter in former suit. If a party fails to do so, the matter is decided against him.
6. Court not competent to decide – When the former suit is decided by the court who has no jurisdiction to decide the matter then the doctrine of res judicata is not applied to the subsequent suit.
7. When there is a change in Law –  When there is a change in the law and new laws bring new rights to the parties then such rights are not barred by Section 11.

When the court fails to apply Res Judicata

If the court fails to apply for the res judicata and orders a contradictory decision on the same issue and Afterwards matter is listed to the third court then the third court will apply res judicata on the basis of the decision on the previous suit. Thus it is the duty and responsibility of the parties to the suit to bring the earlier case to the attention of the court and Judge will decide on whether a plea of Res judicata should be granted or not.

Does the doctrine of Res Judicata is applied to the Writ Proceedings?

A writ has been defined in Article 32 and Article 226 of the Constitution of India. Article 32 has given power to Supreme court to issue writs whereas same power is granted to High courts in Article 226. There are 5 types of writs – Certiorari, Mandamus, Habeas Corpus, Prohibition & Quo Warranto.

The question that whether the doctrine of Res Judicata applies to the writ proceedings is still disputable. If we study the explanations of section 141 of the Civil Procedure Code, 1908 we can find that Section 11 is not applicable to the proceedings under Article 226 of the constitution. But the doctrine or the principle of Res Judicata can be applied to the writ proceedings when there is no applicability of Section 11 of the code6.  Once the question which has been decided by the Writ Petition cannot be reopened by subsequent appeal[7]. It is settled law that the doctrine of Res Judicata is applied in the Writ proceedings but there is one exception to this is that plea of Res Judicata should not violate any fundamental rights of the citizen[8]. The court can apply the principle of Res Judicata in the writ petition but it is necessary for the court to pass a speaking order[9]. The court should give proper reasoning while applying the res judicata. For the writ of the Habeas corpus, the doctrine of constructive Res Judicata would not apply. If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Article 32, because in such a case there has been no decision on the merits by the Court[10].

Does the doctrine of Res Judicata can be applied to the PIL, Arbitration and Awards and Income tax Proceedings?

1. In the case of Rural Litigation & Entitlement Kendra v. the State of U.P.[11], the court held that the doctrine of the res judicata cannot be applied in the cases of Public Interest Litigation.
2. In the case of K.V. George v. Secretary to Govt[12]., the court held that plea of Res Judicata cannot be raised in the cases of Arbitration and Rewards.
3. The doctrine of Res Judicata is not been applied in the income tax proceedings. In the case of B.S.N.L vs. Union of India[13], the court held that the decision given for one assessment year does not operate as res judicata in the Subsequent year.

Res Judicata between Co- Plaintiffs

Conditions required for a decision to become res judicata between co-plaintiff are same conditions which require for the co-defendant. They are:

1. The must be a conflict of interest between the defendants concerned.
2. It must be necessary to decide the conflict in order to plaintiff relief he claims
3. The co-defendants must be necessary or proper parties to the suit
4. The question between the defendant must have been finally decided between them.

Loopholes in the doctrine of res judicata as applied under section 11 of CPC

1. The doctrine of Res Judicata is not applied in appeals.
2. Rule of Res Judicata restricts the process of delivering justice.
3. Sometimes Res Judicata is applied to the Judgments which is contrary to law.
4. There are limited exceptions to the doctrine of Res Judicata
5. Cases decided on the plea of res judicata can be re-litigated

Conclusion

Res Judicata is the concept which is prevalent in all the Jurisdictions of the world. The doctrine of Res Judicata has become one of an important part of Indian Legal System.  Section 11 of Civil Procedure Court, 1908 states that court can apply Res Judicata when he thinks that matter is already decided by the former suit. This doctrine is not only applied to the Civil courts but also to the administrative law and other legislation in India. The principle of finality on which plea of res judicata lies is the matter of public policy. The doctrine of Res Judicata is to prevent multiple judgments and protects the rights of the other party by restricting the plaintiff to recover the damages twice from the defendant on the same injury.

Endnotes

1. Marsh v. Pier, 4 Rawle 273, 288 (Pa. 1833).
2. Kevin M. Charmont, Res Judicata as Requisite of Justice, https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=2599&context=facpub
3.  Satyadhyan Ghosal v. Deorajin Devi, AIR 1960 SC 941 : (1960) 3 SCR 590.
4. AIR 1916 PC 78.
5. AIR 1961 SC 1457 : (1962) 1 SCR 574 : (1962) 2 MLJ (SC) 6
6. Amalgamated Coalfields v. Janapada Sabha, AIR 1964 SC. 1013.
7. State of Gujarat v. Bhater Devi Ramniwas Sanwalram (2002) 7 SCC 500
8. Ashok Kumar Srivastava v. National Insurance Company Ltd. (1998) 4  SCC
9. Rabindra Nath Biswas v. General manager, N.F. Rly AIR 1988 Pat 138.
10. Daryao v. The State of U.P. AIR 1961 SC 1457
11. AIR 1988 SC 2187 (2195) : 1989 Supp (1) SCC 504.
12. AIR 1990 SC 53(59)
13. AIR 2006 SC 1383 (1390)

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In this article, Yogesh Sharma discusses the meaning of IFRS and the Legal Sources of IFRS in India.

Meaning of IFRS

In 1973, representatives of various Accounting bodies from Netherlands, Mexico. Canada, France Germany, Japan UK & US formed International Accounting Standards Committee(IASC). In 1989, a conceptual framework was published by the IASC which was called Preparation and Presentation of Financial Statements. In 2001, International Accounting  Standard Board accepts IASC regulations. IASC was replaced by the IRS foundation and its International Accounting Standard body in 2001. In the year 2003, International Accounting Standards Board holds the meeting and approved First international Financial Report Standards called IFRS 1.

What is IFRS?

The word IFRS stands for International Financial Standards. It is the set of uniform accounting standards which is used by the companies, accountants, auditors, investors, regulators & tax authorities etc of different nations for preparing books of the accounts or Annual Financial Statements. Accounting Standards are a set of principles which are followed by companies in preparing its financial statements which help in checking the performance of the company annually. In other words, IFRS is rules which have uniform accounting language which is followed worldwide. It is also known as a principles-based set of standards which are easy to understand & Apply. These Standards are controlled and governed by the IFRS Foundation. IFRS Foundation is a non-profit organization who develops the same set of quality understandable and enforceable accounting principles which is used by nations worldwide. These Standards are drafted  & updated by the IRS foundation’s Accounting Standards Board. At present IFRS standards are used by almost 140 nations.

Why IFRS?

1. It brings transparency in the financial statements of the companies. It helps the investors to take better economic decisions.
2. These standards strengthen accountability by removing the bridge between the people who invest the capital and the person whom money is given.
3. It improves the economic efficiency of the companies.
4. It helps the companies to identify the business opportunities and risk associated with the business.
5. There is a use of single accounting Language over the globe.
6. It lowers the capital cost and reduces international reporting cost to regulate affairs across the globe.

Structure of IFRS

• Monitoring Body – The organization is overseen by the Monitoring body, consisting of public authorities, such as financial Market Regulators.

• Trustees –  The Trustees are responsible for the government and oversight of the Board, promoting IFRS Standards and securing the organization’s funding.
• International Accounting Standards Board – It is the standard-setting body, made up of experts from diverse professional backgrounds and Geographical Regions

Some Important IFRS

IFRS 1 – International Financial Reporting Standards

IFRS 2– Share-Based Payment

IFRS 3 – Business Combinations

IFRS 4 – Insurance Contracts

IFRS 5 – Non-current Assets held for sale and discontinued operations

IFRS 6 –  Exploration for and Evaluation of Mineral Assets

IFRS 7 –  Financial Instruments Disclosures

IFRS 8 – Operating Segments

IFRS 9 – Financial Instruments

Methods for Implementation of IFRS

There are two methods which are used by different countries to implement IFRS they are:

1. Adoption – Adoption means adopting IFRS or taking something as it is. It means companies applying for IFRS would be implemented in the same manner issue by the International Accounting Standards Board. Adoption of IFRS means counties implementing standards which are the blueprint of the IFRS.
2. Convergence – Convergence means implementing IFRS with some modifications or changes. Government alters or amend the IFRS rule according to the requirement of their nation.

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India & IFRS 

Background

Earlier we were following the Accounting Standards issued by Institute of Chartered Accountants of India (ICAI)  in 2000. These accounting standards were called Generally Accepted Accounting Standards (GAAP). Under Indian GAAP, ICAI issued 39 Accounting Standards from which 36 was followed. Indian GAAP was the Accounting Standards which was designed according to the Indian context. Indian GAAP was based on the principal of the conservatism which means ‘Anticipate for profits and provide for all losses’. Institute drafted these rules to bring a set pattern of accounting standards considering the local conditions.

In the year 1991, the government of India introduced Globalization and liberalization, opening the gates for the global market and removing trade quotas and trade barriers. As IFRS came into existence in 2001- uniform accounting standards for the world and it was increasingly being recognized as a Global Reporting Standards for Financial Statements. As the global market became increasingly integrated many countries were adopting IFRS. India is getting globalized,  getting more foreign direct investments, growth was also improving & India has its own accounting treatments which were ineffective to trade outside the country. It was an urgent need to change the accounting standards and treatments and implement IFRS, the single accounting standards in India.

What are the challenges before India in implementing IFRS

1. Increase in cost initially due to dual reporting requirement which entity might have meet till full convergence is achieved
2. Current Accounting framework in India is deeply affected by laws and regulations. For the implementation of IFRS may require a change in regulations & laws
3. All Stakeholders, employees, auditors regulators tax authorities etc would need to aware about IFRS.
4. Organizations would need to incur additional cost for modifying their current accounting and procedure for meeting the disclosure and reporting requirements.

Why it was necessary for India to implement IFRS

1. It is Globally Accepted.
2. It provides New Opportunities
3. Single Accounting Language
4. Reduce any hindrance in trading outside the country
5. High Quality & understandable Standards and principles
6. It allows the exercise of professional judgment.

Legal Source of IFRS in India: Ind As

With the implementation of Indian Accounting Standards, Ministry of Corporate Affairs filled the gap in the Indian Accounting standards by making it par with the globally accepted Accounting principles. The Legal source of the IFRS in India can be found in the Indian Accounting Standards which is basically known as the Ind As. National Advisory body constituted under Section 210 C of Indian Companies Act, 1956 recommends the ministry of corporate affairs about the implementation of Indian Accounting Standards. Ind As is a customized version of the IFRS implemented in India. Ind As was notified vide Ministry of Corporate Affairs notification dated February 16, 2015, and  March 30, 2016. Section 133 of the Companies Act also states that Indian Accounting standards should be followed throughout the country by company, auditors & Stakeholders etc. On 16 Feb 2015 MCA notified 39 Ind As and on March 30, 2016, MCA deleted one Ind As and notified two more Ind As. As now there are 40 Ind As notified and applicable to Indian companies.

Ind As converged with IFRS

Ind As are converged with the International Financial Reporting Standards(IFRS).Convergence with IFRS means India has used IFRS with some modifications and changes in consideration to the requirement of the nation.

Indian Accounting Standards has taken IFRS and done three adjustments. After 3 class of adjustments into IFRS, later is known as Indian Accounting Standards. In Parallel to IFRS 1 to IFRS 14, MCA has notified Ind As 101 to Ind As 114. Some IFRS interpretations are put in the

Appendix of Ind As which is an integral part of standards.

Indian As = IFRS + Carve outs – Carve Ins + Removal of Options

Carve out – A different treatment in Ind As as compared to IFRS. In some cases, Indian Accounting Standards uses different treatment for accounting. It means in IFRS some treatment was given and on the same problem in Ind As we are doing some another treatment.

Carve ins –  An Additional guidance is inserted in Ind As which is not there in  IFRS. For eg – Accounting of Common Control Transaction is inserted in Ind As but is not there in IFRS.

Removal of Options –  It means that for some IFRS, the choice for accounting treatment is available but for some standards in Ind As those choices have been removed.

Ind As is a new set of global accounting standards which India has started to adopt in phase wise manner from the year 2016 onwards.

For Companies other than Banking, Insurance, and NBFC

1. Voluntary Phase –  It is the phase in which any company other than the Banking, insurance, and NBFC can voluntarily adopt Indian Accounting Standards from 1st April 2015.
2. Phase 1 – In this phase, Listed/ Unlisted Companies having a net worth of Rs 500 crore or its holding. subsidiaries, joint ventures or associate company will adopt Ind As from 1st April 2016.
3. Phase 2 – In this phase, companies whose equity or debt securities are listed or in process of getting listed in any recognized Stock Exchange. Or                                      Unlisted companies having a net worth of more than Rs 250 crore or more but less than Rs 500 Crore. Or                                                                                                    Above companies  holding, subsidiaries, joint ventures or associate Company

   will adopt Ind As from 1st April 2017.

For Non-Banking Finance Company

1. Phase 1 – In this phase, Listed/ Unlisted NBFC’s having a net worth of Rs 500 crore or its holdings. subsidiaries, joint ventures or associate company will adopt Ind As from 1st April 2018.
2. Phase 2 – In this phase, NBFC ’s equity or debt securities are listed or in process of getting listed in any recognized Stock Exchange. Or                                                      Unlisted NBFC’s having a net worth of more than Rs 250 crore or more but less than Rs 500 Crore. Or                                                                                                            Above NBFC’s  holding, subsidiaries, joint ventures or associate company

will adopt Ind As from 1st April 2019.

For Bank and Insurance

1. Banking – All Scheduled Commercial Banks except Regional Rural Bank (RRB’s) will adopt IFRS from 1st April 2018
2. Insurance – As per IRDA circular dated June June 28, 2017, all insurance companies in India are required to adopt Ind As from April 1, 2020.

Benefits of implementing IFRS in India

1. It will benefit the economy by increasing the growth of International Business
2. Implementation of IFRS in India would encourage foreign investment which impacts foreign capital inflow in Account.
3. It will reduce the cost of compliance
4. IFRS would open many opportunities door for professionals to serve internal clients.

Why Standards of IFRS is criticized

1. International Financial Reporting Principles (IFRS) is not been followed by the US. Instead of using IFRS, US uses US-GAAP.
2. During Zimbabwe’s hyperinflationary period of 6 years, IAS 29 Financial Reporting in Hyperinflationary Economies did not give any positive result
3. IAS 29 is still executed in the country of Venezuela and Belarus.
4. There are still some flaws in the accounting standards and treatments of IFRS
5. Extraordinary loss or gain still not defined in the IFRS.
6. IFRS gives unlimited power to the International Accounting Standards Board. It can have a negative impact on the world market.
7. Standards of IFRS are complex and costly. It is difficult for Small-Medium Sized Enterprises to implement IFRS.

Conclusion

In today’s dynamic world International financial Reporting Standard plays a vital role in providing transparency, accuracy, accountability in Financial Statements of the companies. IFRS is the single accounting language which stables the economic efficiency of the companies and they can run the business out of the boundaries of the country without any fear. IFRS is a unique, easily understandable, high quality, Global Accounting Standards. Legal sources for implementation of IFRS can be found in Indian Accounting Standards(Ind As). Indian As is converged with the IFRS with some modifications. It is concluded that the modified form of the IFRS had implemented in India through Ind As in 2015.

References

1. Structure of IFRS, International Financial Reporting Standards,  https://www.ifrs.org/-/media/feature/about-us/who-we-are/who-we-are-english-2018-final.pdf
2. Framework for the preparation and presentation of financial statements in accordance with the Indian Accounting Standards,  https://www.icai.org/post.html?post_id=13724

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Kashish Khattar is a 4th-year student at Amity Law School, Delhi. This article is a discussion about the various aspects related to wilful defaulters.

Introduction

I just finished reading an article on Livemint (here) about the RBI setting-up a public credit registry for capturing all the details of borrowers and wilful defaulters. This registry would boast of availability of information on credit and enrich the existing credit information ecosystem. This is one of the few many steps being taken by the central bank and the government together to curb the biggest problem plaguing the banking sector – NPAs.

Central Vigilance Commission has in its recent report (here) tried to analyse top 100 banking frauds of the country and suggests that banks should have better systems in place for due diligence. The report also calls out for a Confidential Report (CR) on all foreign buyers which should be obtained and analysed properly. This article tries to understand the definitions revolving around wilful defaulters and the various effects the tag of a wilful defaulter brings with it.

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Who is a lender? What is a unit? What is a wilful default?

Here’s the situation as I understand it, a lender can be defined as any bank or a financial institution to whom any amount is due. A unit can be explained as a person, a juristic person and all forms of business enterprises, irrespective of their incorporation.

Basically, when you take a loan from the bank or an NBFC, you are obligated to pay it back. There can be a variety of reasons when the borrower is unable to pay back the loan. Individuals, companies or units are said to be wilful defaulters under the following circumstances: (i) if you are capable of repaying the loan & yet fail to repay the said loan; (ii) if you end up using the loan for any other purpose than what you had availed it for; (iii) if you use the money for any illegal purpose as prescribed by law; and (iv) if you sell the property that you have kept as security with the lender for availing the loan.

The identification of the wilful default should be made keeping in view the track record of
the borrower and is not to be decided on the basis of isolated transactions/incidents.
The default to be categorised as wilful must be intentional, deliberate and calculated.

Who will decide if there has been a wilful default?

The decision regarding wilful default is made by a committee headed by an Executive Director or equivalent and two other senior members equal to the rank of General Manager (“GM”) or Deputy GM.

After the Committee has taken its decision, then it issues a show cause notice to the borrower (which will mainly include the promoters & the whole time directors of the company). The show-cause notice mainly gives the borrower an opportunity to present their case to the committee – by giving written and oral submissions in a personal hearing. Further, after hearing of the borrower, the Committee has to pass an order for the same. The order has to contain the facts and reasoning for such a decision.

Furthermore, the decision is now to be reviewed by another Committee which is typically headed by the Chairman of the bank. The order is final only after it is confirmed by such a review committee.

Various steps in acts & regulations that deal with wilful defaulters

Various safeguards have been instituted into law to deal with regards to wilful defaulters, the following are the effects of wilful default: –

1. Insolvency and Bankruptcy Code, 2016 – The IBC, 2016 gives out a clear unified network framework for resolving Insolvency and Bankruptcy in India. IBC adopts a creditor-in saddle approach, where the interim resolution professional takes over the management of the affairs of the company.
2. Further, SEBI disallows wilful defaulters from boards and they are restricted from raising capital and be involved in capital market activities.
3. Under the Banking Regulation Amendment Act, 2017 – The RBI can issue directions to banks for resolution of stressed assets. Further, the RBI can specify authorities or committees to advise these banks on the resolution of stressed assets. The members on these committees will be approved and/or appointed by the RBI.
4. The SARFAESI Act, 2002 was amended to include three months of imprisonment in case borrower does not provide asset details, and for lender getting the possession of the mortgaged property in 30 days.
5. Companies Act, 2013 – Section 447 and 448 would be applicable with regard to wilful defaulters. S. 447 talks about someone being found guilty of fraud, shall be punishable with imprisonment of six months which can extend up to ten years, or with a fine of amount three times more than the involved in the fraud or with both. S. 448 gives out punishment for false statement.
6. Indian Penal Code, 1860 – A wilful defaulter can be prosecuted under Section 415 and 403 of the IPC. Criminal action is usually initiated by the financial institutions under these sections only. Section 403 typically deals with the dishonest misappropriation of property which states that a person who has been held liable for this offence and shall be punished with imprisonment for a term which may extend to two years or with fine or with both. Further, section 415 states the offence of cheating.
7. Fugitive Economic Offenders Act, 2018 – This legislation was mainly passed to bring about a comprehensive new framework to deal with such a problem. On reading the preamble of the Act, it can be asserted that the Act’s main objective is to punish the ‘fugitive economic offenders’ to face the law and it is done through attachment and consequent disposal of property.
8. The government has now empowered bank chiefs to stop wilful defaulters from leaving India. A circular by the Ministry of Home Affairs has been amended and now includes chairman, managing director and chief executive officers of public-sector banks who can request the issuance of the look-out circular to the MHA. This kind of a circular is issued where an FIR is yet to be filed. Further, banks are expected to lay out criteria on their own which in a way identifies the alleged guilty parties that are expected to leave the country and give reasonable grounds for which this look-out circular has been requested by them.
9. Passport Act, 1967 – It has been recommended that section 10 of the Act to be amended to provide for wilful defaulters of loans above a specified limit of debt may be treated as a financial and economic risk in public interest. Section 10 mainly deals with the impounding of passports.

The natural justice argument

The two basic pillars of natural justice are (i) Audi alteram partem which basically means a right of being heard; and b) Nemo judex in causa sua which means that no one should be the judge of their own cause. The Allahabad High Court has in its recent decision (here), directed IDBI bank to consider the representation by an alleged “wilful defaulter” before they decide to take any “drastic steps” against him.

It can be said that the power to label a borrower as a wilful defaulter lies in the hands of the lender. There can always be a potential for abuse of powers. The tag of a wilful defaulter can be seen as a harsh step towards a person and the RBI circular gives immense power in the hands of the lender. Further, there is a scope of conflicting interests where lenders can be reluctant to accept flaws in their governance structures and loan agreements. Furthermore, there is quite an incentive to declare a defaulter as a wilful defaulter. In a society like ours where reactive lawmaking is the norm, quite a considerable time should be given before giving a wilful defaulter tag to a defaulter. Technically, the decision is given after due consideration by the senior officers of the bank. However, there should be an appellate body to appeal the said decision. But this type of appeal can quite easily delay the process of recovery.

Conclusion

Cleaning of the banking system is the need of the hour and getting back public money will instil confidence in the regulator and the market. However, it should be considered that over-regulation will always lead to oppression which will hurt the genuine risk appetite of the market. On the other hand, hasty regulations are easy to be cheated and can make it easy for the guilty party to get away. The central bank and the government should try to strive for a balance in the regulations which would keep all the stakeholders happy in the process.

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“It is my belief that industry and government around the world should work even more closely to protect the privacy and security of Internet users, and promote the exchange of ideas, while respecting legitimate government considerations”  – Bill Gates 

Introduction 

Over, 43,000 patient’s electronic medical records including HIV reports were leaked from the Health Solutions pathology laboratory, Thane by a hacker which came to the light in December 2016.[i] Such news are not new in the dailies. It only goes on to show how vulnerable we are to data breaches. With the advancement of technology in the healthcare domain, health records are becoming increasingly digitalized. While healthcare institutions such as hospitals, healthcare centres, etc. are busy digitalizing their health records, the Ministry of Health and Family Welfare, Government of India, is in the process of building an Integrated Health Information Platform, and has issued Electronic Health Record Standards (EHR Standards).[ii] These Standards are intended to provide for creation and maintenance of health records in a standardized manner so that interoperability of EHR’s can be made possible throughout the country. Similarly, even the rules of Clinical Establishments (Registration and Regulation) Act, 2010, notified on 23^rd May, 2012, mandates that the “clinical establishments shall maintain and provide Electronic Medical Records or Electronic Health Records of every patient as may be determined and issued by the Central Government or the State Government as the case may be, from time to time”.[iii] Also, the Ministry of Health and Family Welfare in its National Health Policy 2017, has supported the digitalization of medical records and it aims to establish an integrated health information system with a view to link systems across public and private health providers at state and national levels.[iv] The nature of Electronic Health Records being extremely sensitive in nature and to implement a mechanism supporting the interoperability of digital health records it becomes very important to regulate such a mechanism. In the view of this, The Personal Data Protection Bill entails a wider implication and importance in the healthcare domain.

Meaning of Electronic Health Records (EHR)

The Electronic Health Record Standards (EHR Standards) as notified by the Ministry of Health and Family Welfare, Government of India, states that “An Electronic Health Record (EHR) is a collection of various medical records that get generated during any clinical encounter or events”. Electronic Health Record (EHR) is defined by the International Organization for Standardization (ISO) as “a repository of information regarding the health status of a subject of care, in computer processable form”.[v] Thus, it is a digital version of a patient’s comprehensive medical details such as history, diagnosis and prognosis as maintained by a health organization in its database.

General Data Protection Regulation and EHR

European countries have always taken the lead when it comes to ensuring privacy and protection of data. A recent example of the same is the General Data Protection Regulation (GDPR) which has ensured data protection and privacy for all individuals within the European Union. The GDPR has put regulatory teeth in EU to the longstanding governmental guidance about how to deal with the personally identifiable information. Because GDPR is a regulation and not merely a directive, it becomes directly applicable on the national governments in EU. The passing of GDPR has ensured more rights and control to the citizens of EU over their personal data. Its scope is wide enough to cover any non-European company or institution handling personal data of any EU citizen. This now means that, higher level of protection is to be accorded to the EHRs produced in EU. GDPR now expressly includes “genetic data” and “biometric data” and lays down safeguards and obligations that need to be carried out while processing the personal data. Any breaches occurred due to non compliance of any of the provision stated in GDPR may attract a penalty that can cost companies up to 20 million Euros or up to 4 percent of their annual global turnover. The high standards set by GDPR are unprecedented for and will require highest level of compliance to be carried out by companies and other nations including India in order to be able to do any business with the nations of EU.

Personal Data Protection Bill, 2018 and EHR

The Supreme Court in Justice K.S. Puttaswamy (Retd.) & Anr v Union of India held the right to privacy as a fundamental right under the Constitution of India.[vi] Thereafter a committee under the chairmanship of Justice BN Srikrishna submitted a draft Personal Data Protection Bill, 2018. The bill to a large extent has been drafted in line with GDPR and is first of its kind to bring a regulatory framework for data protection in India by conferring multiple rights on the owners of the personal data. It has also created mandates for the organizations and institutions which will handle or process such data. Health data, sex life, sexual orientation, biometric data, genetic data, transgender status, intersex status, etc. has been included under the category of sensitive personal data. This is different from the international data protection laws, which have provided a much narrower definition for sensitive personal data. This would mean that the foreign companies or MNCs would require a higher compliance under this bill as compared to GDPR. This may hamper the ease of doing any business in India but in my opinion is a positive move in terms of protecting the privacy of such sensitive information of patients. On the contrary, this bill has introduced certain provisions from GDPR such as putting limits on collection, use, and storage of data, meaningful notice, transparency, and, critically, the requirement to be able to “demonstrate accountability”.[vii] Significantly, in case of any contraventions of the provisions, the data fiduciary or a data processor shall be liable to a penalty which is just as high as GDPR, i.e it may extend from Rupees five crore to fifteen crore or two per cent to four percent of its total worldwide turnover of the preceding financial year, whichever is higher. Thus, serious consequences may be incurred which will force the organizations to ensure the privacy of personal data such as electronic health records. The bill surely has many grey areas which are needed to be taken into account by consulting various stakeholders. But it is a welcome step which will be effective in ensuring rights of the people over their personal data. This bill will definitely be a landmark in the legislative history of India and it will be interesting to see its evolution during the process of its enactment since it will take data protection on a whole new level.

Conclusion

Digitalization of the world inevitably requires the protection of personal data. Without a doubt, an integrated electronic health care system will facilitate an efficient healthcare delivery all over India. But executing such an ambitious mechanism for EHR which can be interoperated by all healthcare institutions i.e public or private would require digitalizing health records of 1.35 billion people which seems like a daunting task. Before this can be done, the Personal Data Protection Bill, which is set to be tabled in the Indian parliament in its recent winter session will go a long way in ensuring privacy and confidentiality of EHRs. It will also provide a framework to a comprehensive law on EHR if at all one is formulated in the near future.

[i]HIV patient’s data in 43,000 path lab reports leaked online, Times of India (3/12/2016), available at https://timesofindia.indiatimes.com/city/mumbai/HIV-patients-data-in-43000-path-lab-reports-leaked-online/articleshow/55761372.cms, last seen on 20/11/2018.

[ii] Ministry of Health and Family Welfare, Government of India, Electronic Health Record Standards for India, 2016, available at https://mohfw.gov.in/sites/default/files/17739294021483341357.pdf, last seen on 5/12/2018.

[iii] Rule 9 (iv), Clinical Establishments (Central Government) Rules, 2012.

[iv] Ministry of Health and Family Welfare, Government of India, National Health Policy, 2017, available at https://mohfw.gov.in/sites/default/files/9147562941489753121.pdf, last seen on 6/12/2018.

[v]Health Records Systems in India, Swaniti Initiative, available at http://www.swaniti.com/wp-content/uploads/2016/02/Health-records-system-in-India.pdf, last seen on 10/12/2018.

[vi] Justice K S Puttaswamy (RETD) and anr v. Union of India and ors, WP (Civil No) 494 of 2012.

[vii] Amba Kak, The Emergence of the Personal Data Protection Bill, 2018: A Critique, 54 Economic and Political Weekly, 2018, available at https://www.epw.in/journal/2018/38/commentary/emergence-personal-data-protection-bill.html?0=ip_login_no_cache%3D0878fca07e140b271228bf538f06e6b0, last seen on 12/12/2018.

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This article is written by Pranay Bhattacharya, student at MNLU Aurangabad.

India is one of the growing markets for M&A (Mergers and Acquisitions). This article is a modest effort to mention some of the most sought-after lawyers in the field of M&A.

The list here is an alphabetical list and we don’t suggest that any of them is better or superior to the other.

• AJAY BHAL: He is the Co-Founder and Managing Partner of AZB & Partners (merged with Chambers of Zia and Bahram in 2004, and formed AZB & Partners), and he heads the Delhi team of the firm. He has over 30 years of M&A experience and is associated with big Indian business houses, multinational corporations and international organizations. He practices in M&A including tax, Private Equity Investments, Foreign Exchange related advisory work, Securities Regulations, and Taxation including Tax Litigation regulatory issues for corporate acquisitions etc. He also has expertise in litigation and tax accountancy matters, structuring, restructuring and transfer pricing-related issues. He has presented himself as an independent expert on behalf of Government of India on tax and accounting matters before the International Court of Justice, The Hague. He has also represented as counsel and co-counsel in various arbitral positions between large US companies. He also advised the government of India in matters related to M&A on various occasions.

Education:

• Chartered Accountant (1979)
• B.A. from University of Delhi (1985)

Memberships and Affiliations:

• Member of the Confederation of Indian Industry (CII) economic growth and investments council.
• Board of governors of the Indian Institute of Corporate Affairs (IICA).
• Bar Association of India.
• International Bar Association.
• Federation of Indian Chamber of Commerce of Indian (FICCI).
• Indian Management Association.
• Served as a member of the committee constituted by the Ministry of Finance in India, formed to simplify the provisions of the Income Tax Act.
• Member of the Appellate Panel, formed by the Institute of Insolvency Professionals.
• Board of Governors of the Indian Institute of Corporate Affairs (IICA).
• Member of the Committee to review the offences under the Companies Act, 2013 constituted by the Ministry of Corporate Affairs, Government of India in July 2018.

Accomplishments

• Named as a leading attorney in the field of M&A by Asia Pacific Legal500.
• Listed as “world’s leading tax advisors” by Tax Directors Handbook.
• Named as Star Individual for M&A by Chambers Global and Chambers Asia Pacific.
• Named as Leading Lawyer for M&A in 2013 and 2014 by International Who’s Who Legal.
• Asia’s leading business lawyers in the field of M&A and Project Finance by Asialaw 2004.
• Leading Lawyer in the field of General Corporate Practice by 2006 Asia Law & Practice.
• Named a leading tax attorney by IFLR1000.

• AKHIL HIRANI: He is one of India’s leading corporate lawyers having more than 25 years of experience. Currently, he is the Head of the Transactions Practice and Managing Partner at Majmudar & Partners, a leading Indian law firm. He has exceptional Indian law insight with an international skill. He has work experience in California and London. His practice areas are Banking and Finance, Corporate/M&A, Private Equity and Venture Capital, Projects and Energy, Tax, Technology, Media and Telecommunications.

He regularly speaks on M&A, capital raising, issues affecting hedge funds and FIIs, India investment strategies, and related subjects at many international forums, including at seminars held by Terrapin in India and Hong Kong, PLI and ATLAS Legal in the US, and the IBA. He is regularly featured in shows on CNBC TV18, Bloomberg UTV and ET Now. He has won several distinguished awards.

He offers clients over 25 years of experience advising financial institutions on structured investments, joint ventures and regulatory matters.

He has authored several articles and publications on topics, including structuring investments into India, outsourcing to India, joint ventures in India and on tax issues.

Education:

• B.A, Psychology from St. Xavier’s College (1989)
• L.L.B (specialized in Private International Law) from Government Law College, Mumbai (1992)

Membership and Affiliations:

• Bar Council of Maharashtra and Goa
• Bombay Incorporated Law Society
• State Bar of California
• International Bar Association
• American Bar Association
• Law Society for England and Wales

Accomplishments:

• Ranked as one of the most in-demand lawyers by Chambers Asia Pacific, Chambers Global, Asia Pacific Legal 500, IFLR1000, India Business Law Journal, and Asialaw Leading Lawyers.
• Top 100 Legal Luminaries of India published by Lexis Nexis and Practical Law Company.
• A-list of India’s top 100 lawyers by India Business Law Journal.

• ANAND DESAI: He is working as the Managing Partner at DSK Legal since it was founded in April, 2001. He is a leading practitioner in India and has over 30 years of extensive domestic and international experience. He is also a trusted counsel to several large multinational and Indian corporates.

He is a perceptive litigator and negotiator and has innovative and strategic inputs to optimize his clients’ strategy. He has dealt in many high profile cases in criminal and civil litigation including intellectual property, commercial disputes, anti-trust, real estate and information technology.

Education:

• B.Com from Bombay University
• L.L.B from Bombay University
• L.L.M from the University of Edinburgh, Scotland

Membership and Affiliations:

• Served as the National President of Indo-American Chamber of Commerce.
• Chairman of a Committee to recommend amendments to the Specific Relief Act, 1963 by the Government of India, Ministry of Law and Justice.
• President of TiE Mumbai (from April 2016).
• Director of Paani Foundation.
• Trustee of L&T Employees Welfare Foundation.
• Advisory board member of Swades Foundation and Yuva Parivartan.
• Chairman of the Tribal Mensa Nurturing Program.
• Managing Council member of Vision Foundation of India.

Accomplishments

• Featured in the book titled “100 Legal Luminaries of India” by Lexis Nexis.
• Featured in Top 100 A-List published by India Law Journal in 2016.
• Listed as one of the leading lawyers in India in Who’s Who Legal, Chambers Global, IFLR, Asia-Pacific Legal 500 and Asialaw Profiles.

• ANAND PATHAK: He is currently employed at P&A Law Offices in the position of Managing Partner, and was employed at Jones Day. He has practised law for more than 25 years. Prior to joining P&A Law Offices, he was a lawyer in Brussels, Cleveland and Palo Alto. He is admitted to practise law in India and the states of Ohio and California in the United States.

His practises areas are US, European and Indian M&A and joint ventures, and technology licensing, distribution and agency arrangements. He attended all of the European Council negotiation meetings leading to the adoption of the EU Merger Control Regulation and assisted in the drafting of the implementing regulations and guidelines issued by the European Commission. He has represented several clients in proceedings before the Indian Competition Commission, the Competition Appellate Tribunal and the Supreme Court of India, including Apple Inc, MCX-SX, Financial Technologies (India) Limited, Sony Pictures Entertainment, Daiichi Sankyo, Eli Lilly, General Motors, Bull Machines, Ericsson, Amazon, Super Cassettes and DLF Limited.

He is a highly regarded expert in EU and Indian competition law and is well known for his vast experience handling related investigations.

Education:

• B.A Hons. (Economics) from St. Stephen’s College, Delhi University.
• L.L.B from the University of Cambridge, England.
• L.L.M and M.A in International and Development Economics from Yale University.

Membership and Affiliations:

• Has worked at the European Court of Justice, Luxembourg, and in the Competition Division of the Legal Service in the European Commission, Brussels.
• Member of a committee constituted by the Indian government for reviewing Indian competition laws.
• He is currently vice chair of the IPBA on Indian Competition Law.
• Represents several companies before the Competition Commission of India, the National Company Appellate Tribunal and the Supreme Court of India in matters relating to mergers, cartels and abuse of dominance. 

Accomplishments:

• Presented with the National Law Day Award 2005 by the Prime Minister of India for his unique contribution in the field of corporate law.
• Best M&A Lawyer in India in 2008.
• India M&A Legal Counsel of the Year in 2009.
• India M&A Lawyer of the Year in 2011 and 2012.
• Competition Lawyer of the Year in 2011.
• India Competition Lawyer of the Year in 2012, 2013, 2014, 2015 and 2016.

• APARAJIT BHATTACHARYA: He started his career in 2001 as an articled clerk at Crawford Bayley and had joined HAS (Hemant Sahai Associates) way back in 2004 from Trilegal, and now is a senior partner in the HSA Advocates New Delhi office. He has been practicing for more than a decade now. He has been particularly active in the energy and private equity space. His areas of practice are Corporate Commercial, M&A and Private Equity. He has led diverse assignments and transactions in corporate commercial and has advised clients on many cross-border transactions that relate to foreign investment in India, their entry strategies, M&A, equity investments, joint ventures, management buyouts and corporate restructuring. He has worked across varied sectors of commerce and industry in services, trading and manufacturing sectors. He is a pioneer in the area of Clean Development Mechanism (CDM) and has counseled one of the first CDM projects in India. He has been a trusted advisor to many of his clients and sits on the board and advisory committees of several companies.

Education:

• B.S.L, Symbiosis Law School
• L.L.B, Symbiosis Law School

Memberships and Affiliations:

• Childreach International
• SightLife
• Member Bar Council of India
• Member Delhi High Court Bar Association
• Member Inter – Pacific Bar Association (IBPA)
• He is also member of the Infrastructure team with a specific focus on environmental matters.

Accomplishments

• Leading Indian M&A corporate lawyer by Chambers Asia 2010, Chambers Asia 2011 and by Chambers Global.
• Leading lawyer by Asia Law Profiles.
• Leading Lawyer by The Intercontinental Finance Magazine (UK).
• Leading lawyer by ACQ Law Awards (UK).
• Leading lawyer by Global Business Magazine (UK).
• Global Law Experts for Climate Change Legal Advisory Services.
• Leading Lawyer in Corporate Commercial/M&A by Legal 500 (Asia Pacific) in 2016. 

• APURVA DIWANJI: He has been working in Desai & Diwanji for the past 21 years and is currently employed in the position of Partner.He is praised for his knowledge and experience in the corporate and M&A space. His additional areas of strength include commercial litigation international capital markets, co-investments, PE, and joint ventures. He has advised on a variety of transnational and cross border transactions, sale/acquisition of existing Indian companies, GDR/FCCB and QIB issues.

He has advised M&A transactions, including mergers and amalgamations, asset and business purchases and sales, tender offers, securities sales and purchases, buy-outs, joint ventures and strategic buyouts. He advises on the full spectrum of such matters including corporate governance issues, transaction structuring, anti-trust and competition laws, FDI and FEMA issues, SEBI and DIP guidelines, and has advised on transactions across various industry sectors.

Education:

• B.A (Economics), University of Mumbai (1987).
• M.A (Law), Downing College, University of Cambridge, 1993.

Membership and Affiliations

• Non-Executive and Independent Director of Cadila Healthcare Ltd (Pharmaceuticals).
• Director of Go Airlines (India) Ltd.
• Partner of Desai & Diwanji.
• Director of Shapoorji Pallonji Forbes Shipping Limited.
• Director Eureka Forbes Ltd.

• BOMI DARUWALA: He has been practicing since last 30 years in the area of domestic and international tax and heads the Mumbai office of Vaish Associates. He has been associated with the Firm since 1988. Primarily a transactional lawyer, he has been involved in numerous complex tax litigations and argued several tax cases relating to domestic and cross-border taxation issues of foreign companies, multinationals and large Indian corporate houses before various High Courts, Authority for Advance Rulings, Tax Tribunals and other appellate authorities. He has wide expertise in transfer pricing related issues.

He specializes in restructuring of business, M&A, asset & share purchase deals, securities offerings, structuring of complex debt and equity investments and general corporate and tax advisory. He also has expertise in sectors like private equity, cross-border business transactions, joint ventures, angel and venture capital round financings, strategic alliances and business divorces.

He is a notable speaker of several national and international conferences and seminars organized by leading professional bodies and chambers on subjects like M&A, Takeover Code, Foreign Direct Investment and structuring of Joint Ventures and other topical issues. He has also authored various articles and publications including the Handbook of Direct Taxes of which 25 editions have been published by Bharat House.

Education:

• B.Com from Sri Ram College of Commerce
• L.L.B
• Chartered Accountant
• Cost Accountant

Membership and Affiliations

• Insolvency professional with the Insolvency and Bankruptcy Board of India.
• Fellow Member of Institute of Chartered Accountants of India (FCA).
• Associate Member of Institute of Cost and Works Accountants of India(AICWA).
• Independent Non-Executive Director at Mather & Platt Fire Systems Ltd.
• Partner at Vaish Associates Advocates.

Accomplishments

• Independently endorsed as a Leading Lawyer in Corporate/ M&A by Asia law Leading Lawyers 2018.
• Leading practitioner in the Corporate/ M&A practice areas by Chambers and Partners (2018).
• Leading practitioner in the Corporate/ M&A practice areas Asia Pacific Guide and Asia Pacific Legal 500 (2018).

• CHITTRANJAN R. DUA: He is the founding partner of Dua Associates and has been a practicing advocate for over 30 years of rich and varied experience in the Legal field. Dua Associates is one of the largest and prominent national law firms with full-fledged offices across eight metropolitan cities in India. He has successfully established and developed Dua Associates into a practice with over 150 professionals including 42 partners and senior principals. He has vast experience in corporate law, M&A, privatization, project finance, public issues, entry strategies, foreign investment, corporate structuring/ restructuring, infrastructure projects, international trade and taxation aspects of doing business in India. He serves on the boards of many major multinational corporations in India primarily representing the interests of the foreign collaborators and investors. The firm has the aforementioned practice areas and a strong litigation and arbitration practice.

Education:

• B.A from University of Delhi (1971)
• Master’s Degree Delhi School of Economics (1973)
• Honors Degree from St. Stephens College.
• LLB from University of Delhi (1976)

Membership and Affiliations

• Independent Non-Executive Director of TVS Motor Company Limited, Gillette India Limited, Pearl Global Industries Ltd.
• Director of WIMCO Ltd., Tractors & Farm Equipment Ltd., Cabot India Ltd., Becton Dickinson India Pvt Ltd., McCann Erickson India Pvt Ltd., Sella Synergy India Pvt Ltd., Linde Engineering India Pvt Ltd., Lexsphere Pvt Ltd., Result Services Pvt Ltd., Associated Corporate Consultants India Pvt Ltd., Amit Investments Pvt Ltd., Emerson Process Management Power & Water Solutions Pvt Ltd., Fila Sport India Pvt Ltd., Inapex Pvt Ltd, Norling Pvt Ltd., PBE India Pvt Ltd., UL India Pvt Ltd., Timex watches Ltd. and many more.
• Non-Executive Director of Vodafone India Ltd.
• Founding Member of American Chamber of Commerce in India.
• Senior Vice President of Society of Indian Law Firms.

• CYRIL SHROFF: He is managing partner of Cyril Amarchand Mangaldas (since May 2015) and was previously managing partner of Amarchand & Mangaldas & Suresh A Shroff & Co (since 1995). He is a Solicitor, High Court of Bombay, since 1983. With over 36 years of experience in a range of areas, including corporate law, securities markets, banking, infrastructure, trust and estate laws, amongst many others.

He is regarded and has been consistently rated as India’s top corporate and finance lawyer by several international surveys. He is the head of the Private Client team. He has deep and unparalleled experience in advising family businesses, both in India and abroad, on a range of family business, governance, succession and wealth management issues. He specializes in advising family businesses on corporate governance and succession issues.

He has worked on a number of Family Constitutions and Family Arrangements with some of India’s most prominent business families, and continues to act as their trusted advisor in multiple capacities. He is actively involved in advising a number of clients on domestic and cross-border estate and succession planning issues.

He ranks among India’s top finance practitioners and enjoys a great reputation for his expertise in Indian banking law, financial regulation and M&A matters.

Education:

B.A., L.L.B degree from the Government Law College, Mumbai

Membership and Affiliations:

• Was a member of the SEBI constituted by Uday Kotak committee on corporate governance, the SEBI committee on insider trading and recently the SEBI committee for direct listing of foreign securities.
• Member of the first Apex advisory committee of the IMC International ADR Centre and an advisory member of the Financial Planning Standards Board of India and Macquarie.
• He is a member of the advisory board of the Mumbai Court of International Arbitration (MCIA) and was recently appointed as a task force member of Society of Insolvency Practitioners of India.
• He is a member of the advisory board of the Center for Study of the Legal Profession established by the Harvard Law School, a member of the advisory board of the National Institute of Securities Markets (NISM) and on the board of IIM Trichy and the governing board of Krea University.
• Director of Grasim Industries Ltd.
• Independent Director, Chairman of Stakeholders Relationship Committee.
• Member of ESOS Compensation Committee and Member of Nomination & Remuneration Committee, Grasim Industries Ltd.
• Director, IDBI Capital Market Services Ltd.
• Director, Apar Industries Ltd.
• He is a member of the Media Legal Defence Initiative (MLDI) International Advisory Board and also part of various committees of the Confederation of Indian Industry (CII) and Federation of Indian Chambers Commerce & Industry (FICCI).

Accomplishments:

• Ranked as “star practitioner” in India by Chambers Global.
• Regarded as the “M&A King of India”.
• Featured in issues of Asian Legal Business (ALB) – Dealmakers of the Year 2016, as the only individual from India.
• Awarded with “Emerging Markets Firm Leader of the Year – Independent” at the Asian Lawyer Emerging Markets Awards 2016 organized by American Legal Media.
• He has been recognized as a “legendary figure in the Indian legal community”.
• Chambers Asia Pacific, 2017 has ranked him in Band 1.
• Recognized by IFLR1000, 2016 as ‘Leading Lawyer’ in various practices.
• Mentioned in the A list (which identifies India’s top 100 lawyers) by India Business Law Journal.
• Asian Legal Business has featured him in its December 2016 issue as a ‘Dealmaker of the Year 2016’.

• DILJEET TITUS: He is the founding partner of Titus & Co.’s and has been practicing over 28 years, having worked with Singhania from 1990-1997. His practice areas include project finance and development for power, industrial and telecommunications projects, corporate investment structuring and restructuring, M&A, capital markets, commercial transactions, insurance, life sciences and biotechnology, venture capital finance, IT and ADR.

He has written several articles for law and business journals, magazines and newspapers and contributes a legal column, Going by the Book to Business Today, India’s leading business magazine. He maintains an active client practice which includes involvement in transactions, dispute resolutions, intellectual property and tax matters. He represents major US, Japanese and European clients in various capacities in ongoing projects in various phases of development including both greenfield and rehabilitation projects, where he advises in all aspects of investment structuring and restructuring for efficient tax minimisation, statutory and regulatory approvals, drafting and review of project documentation including financing documentations, exchange control issues governing return on equity, tax treatment of operation and management fees, etc

Education:

• B.A. from St. Stephens College, University of Delhi (1986)
• L.L.B from University of Jabalpur, Madhya Pradesh (1989)

Membership and Affiliations:

• Delhi High Court Bar Association.
• Supreme Court Bar Association.
• Inter-Pacific Bar Association.
• International Bar Association; Indian Council of Arbitration.
• Society of Indian Law Firms.
• Confederation of Indian Industry and the ICC India (International Chamber of Commerce).
• Represents the Indian bar on the Indo American Chamber of Commerce committee on the impact of the WTO on the export of services, as well as the Federation of Indian Chambers of Commerce and Industry’s expert group on legal and accounting services.
• He is a member of a number of other committees including the PHD Chamber of Commerce and Industry’s international affairs committee for Asia Pacific; the Associated Chambers of Commerce and Industry of India’s USA expert committee and the Confederation of Indian Industry’s infrastructure subcommittee.
• Associate Vice President of the Society of Indian Firms and General Secretary of the Policy and Planning Group.
• Represented the Indian Bar on the Indo-American Chamber of Commerce committee on “Impact of WTO on Export of Services.”

Accomplishments:

• His biography is included in Who’s Who in the World, 2002.
• The firm was described as a leading private equity practice by Global Counsel 3000 in 2002.
• Commendatore dell’ Ordine della Stella della Solidarieta Italiana (Order of the Star of Italian Solidarity) by a Decree of the President of Italy H. E. Mr. Giorgio Napolitano on the proposal of the Minister of Foreign Affairs Mr. Franco Frattini. H. E. the Ambassador of Italy to India, Mr. Roberto Toscano presented the award to Mr. Titus.
• The National Law Day Award 2007 “For Unique Achievements and Leadership in the Practice of Corporate and Commercial Laws” by the President of India Mrs. Pratibha Devisingh Patil.
• Was awarded Star Export House Status by the Ministry of Commerce, Government of India.
• Ranked by Chambers & Partners, UK among the leading lawyers of the world 2000 through 2016 in the specialist area of projects work.
• Ranked as a “Leading Lawyer” in Project Finance and Mergers & Acquisitions by Asialaw Leading Lawyer Survey for the years 2000 through 2016.
• Ranked as a “Recommended Individual” in Corporate and Mergers & Acquisitions and Project Finance by Which Lawyer?
• Ranked as a “Leading Individual” for sixteen consecutive years by Asia Pacific Legal 500 in infrastructure and Corporate/ Mergers and Acquisitions as well as in Project Finance.
• Global Counsel 3000 Recommended Lawyer-Diljeet Titus, Titus & Co. for Mergers and Acquisitions Consulting Editor The Contemporary Who’s Who, 2016.

• GUNJAN SHAH: She is a partner at Amarchand & Mangaldas & Suresh A. Shroff & Co. Her area of practices are M&A, private equity investment, corporate restructuring, securities and takeover regulations, debt restructuring and debt capital markets and has led several complex and ground-breaking transactions that were first of their kind and are commonly used as precedents. She has specializations in financial services and pharma and life sciences.

Global PE heavyweights routinely turn to her while making investments in India.

Education:

• B.A., LL.B. (Hons) National Law School of India University, Bangalore (1993-98)
• B.C.L., University of Oxford (2000-2001).

Membership and Affiliations:

• Delhi Bar Association

Accomplishments:

• Featured in the list of India’s Hottest Young Executives – 2015 in Business Today’s best and brightest corporate performers under 40
• Recognised as India’s top 40 business leaders under the age of 40 by Economic Times – Spencer-Stuart Survey, 2014
• Recognised by AsiaOne among 50 most influential Indians under 50 in 2016-17

• HAIGREVE KHAITAN: He is a Senior Partner at Khaitan & Co and heads Khaitan & Co.’s Mergers & Acquisitions (M&A) practice and serves as its Head of Mumbai Office. He joined the firm in 1988. He focus areas are Mergers & Acquisitions (Domestic and Cross-border), Private Equity (including in listed companies) & Venture Capital, Domestic and Cross-border Joint Ventures, Collaborations & Franchising, Project Finance Transactions, Banking & Finance Transactions, Takeovers, Strategic Alliances, Foreign Investment Law, Corporate & Commercial Law Advisory, Asset protection & Wealth Management, Business & Family Succession Planning etc.

 He advises a range of large Indian conglomerates and multinational clients in various business sectors including infrastructure, power, telecom, automobiles, steel, software and information technology, retail, etc. He has rich experience in all aspects of M&A- Due Diligence, Structuring, Documentation involving listed companies, cross border transactions and medium and small business, etc.

He spent considerable years of his initial practice in representing clients on litigation matters and thereafter he went on representing many clients on project finance and real estate transactions.

He has been highly recommended by world’s leading law chambers / legal accreditation bodies as one of the leading lawyers in India and as the leading lawyer for Project Finance in Asia. He has been involved in some of the high profile and complex transactions in India.

.He has rich experience in all aspects of Chemical plant operations. He has his expertise on various innovative Chemical technologies, his main research work focuses on time and cost reduction on technologies and evaluation process for improving techniques.

His research interest is Analytical Technique Bioanalytical Technique Liquid Chromatography Separation Technique.

Education:

• L.L.B., South Kolkata Law College (1995)

Membership and Affiliations:

• Non-Executive Independent Director of Harrisons Malayalam Limited, National Engineering Industries Ltd., CEAT Ltd., INOX Leisure Ltd., Ambuja Cements Ltd. , Torrent Pharmaceuticals Ltd., JSW Steel Ltd.
• Non-Executive Director of BTS Investment Advisors Ltd.
• Independent Director of Aditya Birla Sun Life Insurance Company Ltd.
• Director of AVTEC Limited, Seclore Technology Private Ltd., JSW ISPAT Steel Ltd.
• Member of Entrepreneurs’ Organization (India), International Bar Association, Indian Council of Arbitration, Bar Council of West Bengal, All India Bar Association, Inc. Law Society of Calcutta, The Indian Law Institute, Bar Association of India.
• Partner at Azalia Estate Realty Solutions LLP, Perito Tessili Designs LLP, Harulika Ventures LLP and Bhasa Agri LLP.

Accomplishments:

• Leading lawyer in India for Corporate / M&A transactions and Banking by Chambers & Partners, Legal 500, IFLR 1000.
• He was listed in our “40 under 45” survey of India’s Leading Young Lawyers.
• Band 1 lawyer for Corporate/M&A and Private Equity.
• “A” list India’s top 100 lawyers 2016.

• HIMANSHU NARAYAN: He is working as a partner in Dua Associates and has significant experience in transactional work in the field of M&A, strategic and financial partnerships, private equity, corporate finance and provision of general corporate advice. His transactional experience has included work in sectors such as telecommunications (including telecommunications infrastructure companies), life insurance, general insurance, print media, media and entertainment, financial services, advertising, consumer goods, software, engineering, automobile and tyre industry, defence, hospitality, healthcare, manufacturing, petrochemicals, aviation, infrastructure companies in the securities market.

In general, he has been involved in transactions on behalf of buyers, sellers, investee companies and strategic and financial investors in respect of shares of unlisted companies and other securities. In connection with such transactions and arrangements, he has had opportunity to advise on issues pertaining to foreign direct investment, outbound investment, the exchange management regulations, securities laws, and various other Indian legislations and regulations.

His experience has derived from advising international companies, particularly, in the context of strategic alliances and arrangements (combined with licensing and franchising arrangements), in India, and, in relation to their investments and operations, in many international forums.

In addition, and over the years, he has also acted for various financial investors, international property developers, private equity investors, including for their investments into the real estate sector in India, foreign institutional investors, Indian branches of various international banks relative to corporate finance transactions, securitization and investments through various instruments.

In the recent few years, he has also advised on various aspects surrounding foreign involvement in the trading sector and has been involved in negotiating incremental commercial arrangements in the retail sector in India. He has also worked with stressed asset groups in devising and implementing alternative investment products and structures for the same. In addition, he has also had the opportunity to work on family restructuring and consolidation arrangements.

As a natural corollary to his transactional work, he has had extensive experience in formulating a strategy for and negotiating, various joint ventures, strategic alliances and other corporate arrangements.

Education:

• B.A, L.L.B (Hons.) from NLSIU Bangalore

Accomplishments

• Featured as leading lawyer in Corporate and M&A by Asialaw
• Featured as leading lawyer in Private Equity by Asialaw

• KUNAL THAKORE: He is a partner at Partner at Talwar Thakore & Associates. He is widely recognised (including Chambers & Partners and Merger market) as a leading M&A lawyer having over 20 years’ experience as a Solicitor. His expertise includes joint ventures, M&A and disposals (both public and private), private equity investments, and more generally advice in relation to the regulatory landscape in India. He has advised domestic and international clients on some of the most significant deals in the market.

• MANSINGH LAXMIDAS BHAKTA: He is one of the senior managing partners with Kanga & Company, a firm of advocates and solicitors in Mumbai, and has been on the Reliance board since 1977. He has been practicing for over 45 year now. His areas of expertise are M&A, corporate and commercial law, Foreign Investment in India and Taxation.

He has been named as one of the leading lawyers in Asia for several years by Asialaw and Chambers and Partners. He has also contributed articles on diverse legal subjects and presented papers before various national and international forums.

Education:

• Graduate from Government Law College, Mumbai
• L.L.B from Government Law College, Mumbai

Memberships and Affiliations:

• Served as the chairman of the Taxation Law Standing Committee of Asialaw.
• Served as the chairman of Taxation Committee of Indian Merchant’s Chamber.
• Member of the advisory committees of the Life Insurance Corporation of India and Deutsche Bank.
• Committee member of the Bombay Incorporated Law Society and of the governing board of the India Council of Arbitration.
• Committee member appointed by the Reserve Bank of India on legal aspects, relating to operations for banking and financial systems.
• Director of JCB India.
• Lead Independent Director Reliance Industries Ltd. (since 1997)
• Independent Director of Abhijeet Power Ltd. (since 2010)
• Independent Director Jyoti CNC Automation Ltd. (since 2012)
• He is President Emeritus of with Association of Hospitals, Bombay.
• Board Member of Nathdwara Temple Road, Rajasthan

Accomplishments:

• Recipient of the Rotary Centennial Service Award for Professional Excellence from Rotary International.
• Leading Lawyers of Asia for six consecutive years, from 2011 by Asialaw Journal.
• Award of ‘The Pillar of Hindustaanee Society’ for the year 2014-15 in the field of ‘Ethical Law Practice’ by Trans Asian Chamber of Commerce & Industry.
• Named as one of the leading lawyers of Asia by Asialaw Journal.
• One of India’s top 50 independent directors in a survey undertaken by the Capital Markets Magazine in 2003.
• He is listed as one of the Leading Lawyers of Asia for 2006 and 2007 by Asialaw, Hongkong.

• MOHIT SARAF: He is currently working at Luthra & Luthra in the position of Partner. He heads the Corporate, Mergers & Acquisitions, Private Equity, Infrastructure & Projects practices at the Firm. With over 25 years of experience across sectors & industries, he has advised major global and Indian companies.

He specializes in M&A and Private Equity representing some major clients such as Mylan, Baxter, Bayer and Carlyle.

He has over 50 publications in various national & international journals and magazines like Financial Worldwide, Finance Yearbook by PLC, Economic Times, Business Standard, Financial Express, Powerline, Tele.net, India Infrastructure, India Business Law Journal and SIAC Yearbook.

Education:

• Delhi University 

Membership and Affiliations:

• Bar Council of Delhi
• International Bar Association 

Accomplishments:

• Voted as ‘Leaders in their field’ by Chambers Global 2012 for Corporate/M&A and Projects, Infrastructure & Energy.
• Voted as ‘Leading Lawyers’ by IFLR 1000- 2012.
• ‘Asialaw Leading Lawyers’ by for Banking & Finance and Capital Markets, General Corporate Practice and Project Finance.
• Voted for his expertise in Project Finance, Mergers & Acquisition, Real Estate, Procurement, and Insurance & Reinsurance by International Who’s Who of Business Lawyers.
• He has been recommended as one of Asia’s top 25 M&A lawyers.
• Honored by ALB HOT 100 as one of the top performing lawyers.
• He is a recipient of various national and international awards and is listed as a Band 1 M&A lawyer in Who’s Who Business Lawyers, Chambers Asia Leading Lawyers and Asia Pacific Legal 500. IFLR1000 Financial and Corporate also lists him as a Leading Lawyer.
• He has been awarded the ‘Shaurya Chakra’ (a national peacetime gallantry award by the Indian President, Mr. R. Venkatraman).

• NAINA KRISHNA MURTHY: She is the founder and managing partner of Krishnamurthy & Co (K Law). She started her career with Arthur Anderson followed by a stint as the in-house counsel at Biocon. She founded K Law in 1999 in Bengaluru. She is based in the firm’s Mumbai office.

Under her leadership and guidance, K Law today is a full-service Indian law firm with 13 partners, four associate partners and about 85 lawyers in offices in Mumbai, Bengaluru, Delhi and Chennai.

 She specializes in corporate commercial law, specifically M&A, joint ventures, collaborations and PE/VC investments, and is a trusted adviser to some of the foremost companies, including Larsen and Toubro, Reliance Industries, Pipavav Defence and Caterpillar. She recently advised L&T General Insurance in its sale to HDFC Ergo valued at ₹5.5 billion.

Education:

• B.A, L.L.B (Hons.) from National Law School of India University, Bangalore (1996)

Membership and Affiliations:

• Director of Epicentre Research Technologies Bangalore Private Limited, National Commodity & Derivatives Exchange Ltd., Performance Direct Software Private Limited, Acciona Agua India Private Limited, MRops Progamming India Private Limited, Mobile Feed Back Services India Private Limited and Focus Suites Solutions & Services Private Limited.
• Non Executive Independent Director of Aurangabad Electricals Ltd., IndoStar Capital Finance Ltd.

Accomplishments

• She was recognised by India Business Law Journal as ‘A List’ of India’s top 100 lawyers in 2018, 2017 and 2016.

• NISHITH MADANLAL DESAI: He is the founder of Nishith Desai Associates. He is a Non-Resident Indian, specializing in the field of M&A, International Taxation, International Business Strategy, International Construction Law, Institutional Investment, International Finance, Structuring of Joint Ventures, Offshore Funds, and Infrastructure. He was admitted to the bar, Mumbai in 1973. He is currently practicing as an International Lawyer, Researcher and Lecturer and is on the Advisory Board, New York State Bar Association’s International Law Review. He has experience in the Fund sector, advising the largest number of offshore investment funds. He also played an important role in structuring several private equity funds in addition and structuring domestic venture capital funds. He has advised the SIDBI and the Department of Electronics, Government of India, on their domestic venture capital fund. He is also an international tax and corporate lawyer, researcher, author and lecturer.

Education:

• L.L.B from Government Law College, Mumbai (1973)
• L.L.M from University of Bombay, Department of Law

Membership and Affiliations:

• Member of International Bar Association, International Tax Planning Association, Supreme Court Bar Association, American Bar Association and Inter-Pacific Bar Association.
• Chairperson of Taxation Committee of LAWASIA.
• Senior Country Correspondent for Tax Notes International, US. Lectures: Institutions such as Kellogg Business School (US), Fabrimetal (Belgium), ZFU (Switzerland), National University of Singapore, Basata (UK), Citibank, Coopers and Lybrand, various Chambers of Commerce.
• Member of Advisory Board at Avendus Advisors Private Ltd.
• Advisory Board of the New York State Bar Association’s International Law Review.
• Senior country correspondent for “Tax Notes International”, USA.

Accomplishments:

• License of State Bar California (to practice Indian law).
• Ranked No. 28 in a global Top 50 “Gold List” by Tax Business, a UK-based international tax journal.
• Recognized as one of the Top 100 Lawyers in India by the Indian Business Law Journal.
• Honored as ‘Market Leading Professionals’ by Asialaw 2019.
• Featured in the Lex Witness publication “Witness Hall of Fame: Top 50” (2010).
• Honoured with the title of “ Yunus Social Business Pioneer of India” – 2010 by The Grameen Lab and the Wockhardt Foundation.
• Managing Partner of the Year (2014) by IDEX Legal.
• Voted “External Counsel of the Year 2009” by Asian Counsel.

Publications:

• Non-resident: Investment incentives and tax-planning (published by Taxmann)

• NITIN POTDAR: He is working as a corporate lawyer partner at J. Sagar Associates. Prior to joining JSA, he was a partner with Amarchand & Mangaldas & Suresh A. Shroff & Co., and prior thereto he was with Crawford Bayley & Co.

 He specializes in Public and Private M&A including De-mergers, restructuring of the business, Asset & Share Purchase deals, Joint Ventures and Strategic Alliances, Private Equity and general Corporate advisory.

He has vast experience with transactions related to Foreign Direct Investments & Exchange Controls Regulations. He has advised several multinational companies on financial & technical collaborations in India, and strategies/options for commencing operations & consolidations in India, in a cross-section of industries. His focus has been on foreign investments from the US, Germany and Japan.

He also has extensive experience in Private Equity & Strategic Investment transactions including leveraged buyout transactions & exits. He has provided business-oriented advice to a variety of companies receiving Private Equity / Strategic Investments

He is a keen observer of the evolution of the law regulating Takeovers in India and now the Insolvency and Bankruptcy Code 2016. He has been part of several high profile corporate takeover battles including, defending hostile bids and restructuring.

A widely acclaimed foreign investment expert, he’s advised the best of Indian corporate houses and MNCs across verticals of entertainment, Pharma, IT, FMCG, Engineering, Automobiles and Cement.

A revered speaker at several thought leadership conferences and seminars organized by leading industry institutions and chambers, he is also a self-motivated social author-activist who regularly steers public attention to the larger cause of nation building across academic, social and cultural forums.

Education:

• B.A from University of Bombay (1984)
• L.L.B from University of Bombay (1988)
• Solicitor, The Bombay Incorporated Law Society (1991)

Membership and Affiliations:

• Chairman of Gandhi Films Foundation
• Founder Trustee of Maxwell Foundation
• Director of Intas Pharmaceuticals Ltd., Motilal Oswal Trustee Co. Ltd., Keva Fragrances Pvt Ltd., Fori Automation India Pvt Ltd.
• He was a member of International Bar Council’s “India Advisory Group’ as also the working Group on Indian Merger Control rules of the International Bar Association, and member of Maharashtra Chamber of Commerce and Industry, The Chamber of Tax Consultants Corporate Committee.
• Currently member of the CII Western Region Committee on Startups and Entrepreneurship.

Accomplishments:

• He’s been recognized by the coveted Asia Pacific Legal 500 as a Private equity expert of international repute who is ‘highly recommended’ in the M&A practice
• Has also been listed as a leading individual in the Investment Funds category.
• He has won accolades from the Chambers & Partner, London for his pioneering consulting work in M&A, FDI, private equity and partnership contracts.

• RAJAT SETHI: He is a partner of S&R Associates in Mumbai and one of the highly experienced lawyers. Before joining S&K Associates, he was working with P&A Law Offices in New Delhi and Chambers of Mr. Arun Jaitley, Senior Advocate. He has wide experience of advising clients on a wide array of issues which includes M&A, Private Equity, Competition/Antitrust and general corporate advisory.

Till date, he has acted for different clients in matters linked to IPR, share holder disputes, contractual disputes, banking matters as well as recovery suits.

Education:

• B.A (Hons.) in Mathematics from St. Stephen’s College, University of Delhi (1992)
• L.L.B from Faculty of Law, University of Delhi (1995)
• LLM from Tulane University Law School (1996)

Membership and Affiliations:

• Delhi Bar Association

Accomplishments:

• Recognized as a “leading lawyer” by Chambers Global for Corporate/M&A; by Chambers Asia Pacific for Corporate/M&A, Private Equity, and Technology, Media, Telecoms; by IFLR1000 for M&A and by RSG India Report for Corporate M&A and Private Equity.

• RAJESH N. BEGUR: He is the founder and the managing partner of ARA Law. Earlier he was one of the senior associates in Amarchand Mangaldas. He has been practising for over 3 decades now and has been one of India’s leading corporate lawyers. He is one of the leading counsel for domestic and international clients in corporate areas especially focusing on M&A, Real Estate, Capital Markets, Private Equity, Infrastructure, Banking and Finance, Telecom Media etc.

He has great insight and determination to handle complex of the complex legal business transactions. He is one of the most recognized lawyers in the field of M&A and Private Equity as well as Mutual Fund Regulations. He has made a significant contribution in legal advice and documentation on first GDR offering by an Indian listed company and drafting of the Depositories Ordinance and its model bye-laws. He also contributes articles for Asia Law and premier legal websites.

Education:

• B.Com from Mithibai Motiram Kundnani College of Commerce & Economics(1983)
• L.L.B from Government Law College, Mumbai (1987)

Memberships and Affiliations:

• Admitted on the rolls of Bar Council of India (1987)
• Admitted as Solicitor on the rolls of the Bombay Incorporated Law Society (1992 )
• Admitted on the rolls of Supreme Court of England and Wales 1994
• Member of the Advisory Board of National Law University, Jodhpur

Accomplishments:

• Top 10 lawyers in India in Banking and Finance by Legal 500.
• He is the editor of ARA LAW’s newsletter “Legal Eye”.

• RAJIV K. LUTHRA: He started his career with taxation matters in 1978. He is the Founder & Managing Partner of Luthra & Luthra Law Offices – one of the largest law firms in India. He has over 25 years of experience in advising clients on a vast range of complex commercial transactions including infrastructure projects in India, Sri Lanka, Bangladesh, China, Nepal and Nigeria. He has successfully handled various disinvestment, privatization and restructuring assignments and has worked on some of the largest mergers in Indian corporate history. He has been appointed by the Government of India on the drafting of several rules and regulations. He has also contributed various publications in national and international professional journals and magazines. He is also well experienced in the structuring of foreign investment into India.

Education:

• Alumni of the Harvard Law School
• Fellow of the British Commerce Society and the Royal Geographical Society

Membership and Affiliations

• Member of International Bar Association, Inter-Pacific Bar Association, National Executive Committee at Confederation of Indian Industry, Union Internationale des Avocats, SWIICL at The Center for American & International Law, Securities & Exchange Board of India, Supreme Court Bar Association, Delhi High Court Bar Association, India Ministry of Human Resources Development, American Bar Association and Internal Quality Assurance Cell at NALSAR University of Law, National Executive Committee at Federation of Indian Chambers of Commerce & Industry, Competition Commission of India to the Competition Advocacy Steering Committee, National Committee on Energy & the Core Group on Infrastructure Development of the Confederation of Indian Industries.
• The Ministry of Commerce has appointed him as a Convener of the Committee formed to advise the Government of India on liberalization of legal services under the GATT between India and the U. K.
• Independent Non-Executive Director of DLF Ltd, Symphony International Holdings Ltd.
• Independent Director of TV18 Broadcast Ltd, Network 18 Media & Investments Ltd.
• Director of Mylan Laboratories Ltd., VLCC Health Care Ltd., Singapore International Arbitration Centre, Lodhi Property Co. Ltd., Delhi Golf Club Ltd., Mylan Laboratories India Pvt Ltd., Knowledge Cloud Pvt Ltd., Paani Foundation.

Accomplishments:

• Ranked amongst the ‘Leading Individuals’ in Banking & Finance by The Asia Pacific Legal 500.
• Recipient of the Asian Legal Business Award.
• Honored as “Legend in Indian Corporate Law” and as an “Ace Legal Eagle for Indian corporate law, specializing in tax, regulatory and compliance laws” at the Asian Business Leadership Forum (ABLF) Excellence Awards held in Dubai in December 2013.
• The Lawyer.com included him among its top 40 ‘to have been making the biggest waves outside the UK.’
• He ranked amongst ALB’s Hot 100 in recognition for his contribution to the Capital Markets’ sector.
• Recipient of the ‘International Jurists Awards 2013’, 2012 Lifetime Achievement Award by the Attorney-General of the United States of America for “his accomplishments and achievements in the International M&A sector” at the 4th Annual International M&A Advisor Awards 2012 in New York, and the “2008 National Law Day Award” by the Hon’ble Prime Minister of India and the (then) Hon’ble Chief Justice of India, for “…his singular contribution to the practice of corporate and commercial law in India and for being one of the country’s earliest pioneers in international transaction lawyering”.
• Featured in the ‘Leaders Profiles – India – Project Finance’ of the Chambers Global.

• RAVI SINGHANIA: He is the managing partner of Singhania & Partners LLP (established 1999) headquartered in Delhi with branch offices in Hyderabad and Bangalore and associate offices in prominent cities across India.

He has been bequeathed with innumerable legal accolades and has been consistently rated as India’s top corporate-M&A, dispute resolution and project finance lawyer by several international surveys. Ravi has over two decades of experience in diverse practice areas such as employment, real estate, competition apart from M&A, and Project Finance with Clientele spread across the globe.

He has been advising World Bank since 2004 on FDI related matters and for their annual publication “Doing Business in India”. He also advises number of ministries, central and state governments as well for divestments and infrastructure related matters. Besides, there are large PSUs, Banks and MNCs who trust his legal acumen on Cross-border Transactions, compliances under SEBI Takeover Regulations, M&A, Investment Structuring, Corporatization, Debt & Equity offering, and Dispute Resolution. He provides both hands-on legal advice and overall strategic inputs while drafting and negotiating contracts for complex transactions.

He is admitted to practice law in India as an Advocate and as a Solicitor of the Supreme Court of England and Wales.

He is also a renowned speaker who regularly speaks in various seminars. Further, he has to his credit, a number of publications in various national and international professional journals and magazines including American Bar Association and Euro Money.

Education:

• B.com (Hons.), Commerce Economics from Sri Ram College of Commerce.
• L.L.B from Campus Law Center, Delhi University.

Membership and Affiliations:

• He is a board member in CRISIL Ltd. and Indian subsidiaries of numerous Fortune 500 companies such as McGraw-Hill, AOL, American Bureau of Shipping, National Instruments etc.
• Serves on the Board of several multinational companies such as ABS Industrial Verification (India) Pvt. Ltd., ABS Quality Evaluations Pvt. Ltd., AOL Online India Pvt. Ltd., Assets Care Enterprise Ltd., BearinqPoint Business Consulting Pvt. Ltd., Capital IQ Information Systems (India) Pvt. Ltd., India Autobahn Automobiles & Ancillaries Pvt. Ltd., Asset Care and Reconstruction Enterprise Ltd., ABS Professional Services (India) Private Ltd., McGraw Hill Educational Services India Private Ltd., Ml Systems (India) Pvt. Ltd.Powerwave technologies Research and Development India Pvt. Ltd., Singhania and Partners Pvt. Ltd., Stahl CraneSystems (India) Pvt. Ltd., Survey Sampling International India Pvt. Ltd. and Liqhtbulb Technology Services Pvt. Ltd..
• He is the former Governing Body Member of Indian Council of Arbitration and Vice Chairman of Asia Pacific Committee of American Bar Association.
• He is a Member of Law Society of England & Wales, Chartered Institute of Arbitrators, London as well as Supreme Court Bar Association.
• He is the Country Representative for Sweet & Maxell’s ‘International Company & Commercial Law Review’

Accomplishments:

• He is the youngest lawyer to be felicitated with the “National Law Day Award” for Corporate Laws (2006) by Prime Minister Dr. Manmohan Singh.

Publications:

• Authored India chapters in books titled ‘Product Liability in Asia Pacific’ and ‘Employment Laws in Asia’.
• “Drafting of Contracts”- Templates with Drafting Notes published by Bloomsbury.

• ROHIT KOCHHAR: Widely acclaimed as a pre-eminent Indian lawyer and outstanding legal entrepreneur, he is the Chairman & Managing Partner at Kochhar & Co, one of India’s leading and premier corporate law firms and plays an active role in the management and operations of the firm at a global level. In addition to management functions, he is actively involved in private practice and advises numerous foreign clients on diverse matters relating to inbound investments.

His main areas of work include regulatory approvals, joint ventures, foreign collaborations, acquisitions, company law, labour and employment law, exchange control, general commercial transactions and corporate litigation. He enjoys special expertise in assisting foreign clients on their entry strategy and has been instrumental in advising numerous multinational corporations on setting up a business presence in India and providing continual legal support to various clients on Business Law issues.

He also enjoys expertise in matters pertaining to Reserve Bank of India approvals and Exchange Control Regulations.

He also heads the prevention of sexual harassment (POSH) and employee fraud practice desks of the Firm. He regularly advises numerous Fortune 500 Companies (including major US, European and Japanese corporations) on a host of Indian law issues and sits on the board of many Indian subsidiaries of such corporations.

He has been one of the pioneers of the Indian legal services sector with many firsts to his credit. Under his dynamic leadership, Kochhar & Co is the only full-service law firm with a true national presence that is spread across six prominent Indian states and four overseas offices, including Dubai, where it is the only firm from the sub-continent to have an independent license to practise local UAE and DIFC laws.

Mr. Kochhar is a frequent speaker at various international and domestic conferences. He also conducts workshops and training for clients in employee retrenchment, transfer of employees and the prevention of sexual harassment.

Education:

• B.Com., (Hons.) from University of Delhi
• L.L.B. from University of Mumbai

Membership and Affiliations:

• Delhi High Court Bar Association.
• Supreme Court Bar Association.
• International Bar Association (IBA).
• Inter-Pacific Bar Association (IPBA).
• Honorary Secretary of the Society of Indian Law Firms (SILF)

Accomplishments:

• Conferred the distinguished Rashtriya Gaurav Award (Pride of India) for his outstanding achievements in the legal field.
• Awarded the International Council of Jurists Award by the Hon’ble Prime Minister of India, Dr. Manmohan Singh for his “distinctive accomplishment in the areas of corporate law and legal entrepreneurship”.
• Conferred the Rajiv Gandhi Award for being the “Young Achiever & Entrepreneur” in 2000. He is the first and only practicing lawyer in India to have been conferred the Rajiv Gandhi Award since its inception.
• Distinct recognition by Legal 500 and named him in the Elite “Leading Lawyers” for corporate and M&A in Asia-Pacific region.
• Bestowed with the LegalEra Premier League Awards (2012-13) for Outstanding Achievements Firm.
• Conferred the Award for one of the World’s Greatest Leaders in Asia & GCC 2015 by His Excellency Mr. T.P. Seetharaman, the Ambassador of India to the UAE on the occasion of the 44th UAE National Day.
• Kochhar & Co. was conferred the ‘National Bar Award’ by the All India Bar Association for being “The Most Dynamic and Progressive Indian Law Firm” by the Chairman of the Law Commission of India.
• Conferred with the National Citizens Award for his unique contribution in the field of “Youth Affairs”.
• Presented the National Law Award for “Excellence in Corporate law” in 1999.

Publications

• Co-authored a book titled “Doing Business in India” published by Business Laws, Inc.
• Article on ‘Exit from a Joint Venture in India’ in IBL (Journal of the Japanese Institute of International Business Law).

• SANJAY ASHER: He started his advocacy since 1989 and was admitted as a solicitor in 1993. He is now the youngest senior partner at Crawford Bayley (India’s oldest law firm, established in 1830). He has more than 20 years of experience in the field of corporate law. His areas of specialization are: M&A joint ventures cross border M&A and capital markets.

He also serves as the independent director of various public and private companies in India as well as international firms and organisations.

He is a notable speaker in seminars and conferences organised by Institute of Chartered Accountants of India, Institute of Company Secretaries of India and International Financial Law Review etc. He has several publications in national and international levels and also published a book on Company Law Ready Reckoner, 2014 (Publisher: CCH – A Wolters Kluwer Business).

Education:

• Bachelor’s Degree from Mumbai University
• L.L.B from Mumbai University
• Chartered Accountant.

Memberships and Affiliations:

• Member of Institute of Chartered Accountants of India.
• Indo-US Financial Institutions Reforms and Expansion Projects – Capital Markets
• Member of Bar Council of Maharashtra & Goa
• Chairman of Integra Engineering India Limited (2009-11)
• Non-Executive Independent Director of Sudarshan Chemical Industries Limited (from 2009)
• Non-Executive Independent Director of Finolex Industries Limited (from 2012)
• Director of Bajaj Allianz Life Insurance Company Limited

Foundation:

• Sanjay Asher Trustee, Partner, Crawford Bayley & Co.

• SHIVPRIYA NANDA: Currently she serves as the Joint Managing Partner of JSA and Co-Chairs its Corporate Practice.

She has more than 30 years of experience in all aspects of Corporate Commercial practice including M&A, representing multinational corporations and enterprises in large scale cross-border transactions, advice related to the establishment of new business operation, Corporate structuring, Joint Venture agreements, Asset & Share acquisition, Divestment, Franchising, Real Estate, Employment and Commercial contract issues. She advises International majors on large Infrastructure projects in the Transport, Aviation and Mining sector.

She has inter alia advised the airport operator in the privatisation of the Delhi airport and has also advised one of the largest multinational cargo companies in setting up their operations in India. She has also been involved in assisting with the entry strategy structuring in the largest Foreign Direct Investment in the Mining sector. Having worked with one of the premier litigation firms of Delhi prior to her current practice, she has substantial experience in Litigation & Arbitration, including International Arbitration. She has represented clients such as Wal-Mart, Michelin, EMAAR, KFC and Pizza Hut, Fidelity, Frankfurt Airport, Posco, Pernod Ricard, Hindustan Times amongst others.

She has also advised several Fortune 500 companies in complicated strategic alliances, restructurings, shareholder issues, bribery and anti-corruption investigations, technology licensing and transfers, senior management engagement and exits.

Education:

• Graduate from Lady Sri Ram College
• L.L.B Campus Law Centre, Delhi

Membership and Affiliations:

• Non-Executive & Independent Director of Jubilant Industries Limited.
• Independent Director of EICL Limited.

Accomplishments:

• Ranked as a top-tier lawyer in various publications.
• Ranked as one of the leading individuals by Legal 500 consecutively for the past years.
• Listed as one of the top leading lawyers in India by Who’s Who legal.

• SOM MANDAL: He is the Managing Partner of Fox Mandal, Delhi. He also steers the International practice of Fox Mandal. His focus is mainly in M&A, corporate law and project finance, etc. The International Who’s Who of Business Lawyers has accredited him for the M&A sector in India. He actively takes part in various International Seminars.

He has authored the chapter on ‘FIDIC Applicability in India’ published by Kluwers Publications. He has proactively approached various Governmental bodies concerned, on the ongoing subject of “Liberalisation of the Indian Legal Sector” welcoming the entry of foreign law firms in India.

Education:

• B.A. from St. Xavier’s College
• L.L.B. from the University of Calcutta 

Membership and Affiliations:

• Member with the Supreme Court Bar Association, Delhi High Court Bar Association, International Bar Association, American Bar Association (International Section) Union des Advocat, Inter Pacific Bar Association, National Asian Pacific American Bar Association etc.
• He is the one of the Indian representative at the Commission on Arbitration of the International Chamber of Commerce, Vice-Chair of the Asia Pacific Forum and Council member of Section on Legal Practice of the International Bar Association and of Committee on Corporate Law & Legal Affairs-FICCI.

 Accomplishments:

• Nominated by Asia Law & Practice, as a leading lawyer in Asia in the field of M&A.
• He has also been nominated by Chambers Global, as a leading individual in Project Finance.
• He has been awarded the ‘Best Corporate Lawyer’ in India on the occasion of Law Day Awards 2002.
• Featured in Asian Legal Business Magazine’s Hot 100 Lawyers.
• Featured amongst the 40 International Star Lawyer graded by The Lawyer magazine.
• Legal 500 ranked him as a Leading Individual Lawyer for Corporate and M&A.
• He has been nominated as the Asian Hot 100 lawyers by ALB and amongst the 40 International Worldshakers by The Lawyers UK.

• SRIDHAR GORTHI: He is a partner and non-executive director in Trilegal, and is part of the corporate practice group of the Mumbai firm. Prior to that, he also worked with Arthur Andersen and Lex Inde, Mumbai. His areas of expertise include M&A, Joint Ventures and Private Equity. He has been actively involved in several high profile cross-border transactions and advices various multinational and domestic corporations on restructuring, debt finance, joint ventures, acquisition/mergers and private equity transactions. His key clients include Goldman Sachs, Morgan Stanley, Lincoln Electric, Heineken, Thomson Reuters, Lockheed Martin, Tesco, eBay, the Godrej Group, L&T, Shriram Group and the Raheja Group.

Sridhar has represented international clients on inbound M&A in India as well as Indian companies on outbound M&A transactions in jurisdictions such as the UK, the USA, South Africa, Argentina, Indonesia and Sri Lanka. The private equity funds that Sridhar regularly advises include CLSA and Morgan Stanley PE.

His research interest is Medical Oncology and Therapeutics Colorectal Cancer Research and Reports in Gastroenterology Oncology Translational Research and Pharmaceutical products.

 Education:

• B.A, L.L.B (Hons.): National Law School of India University.

Membership and Affiliations

• Member of the Bar Council of Maharashtra and Goa.
• Non-Executive Independent Director of Glenmark Pharmaceuticals Ltd.
• Chairman of Hathway and Non-Executive Independent Director of Cable & Datacom Ltd.
• Director of Hathway Bhawani Cabletel and Datacom Ltd.

Accomplishments:

• Leading lawyers in India for M&A, Private Equity and Venture Capital in India by the Guide to Asia Pacific’s Leading Lawyers 2010, 2011 and 2012; and by IFLR 1000, 2011 and 2012.

• SURESH NARSAPPA TALWAR: He is a Partner at Talwar, Thakore & Associates. He is a Corporate Counsel of Talwar, Thakore & Associates and set up Talwar, Thakore & Associates in April 2007. He served as Senior Partner and Adviser of M/s. Crawford Bayley & Company until March 31, 2006. As a practicing lawyer with the Bombay High Court since 1966, he has over 43 years of experience in the legal profession, specializing in corporate law dealing specifically with M&A, corporate taxation, foreign exchange laws, international issues of Indian securities and real estate laws among others

 Education:

• Undergraduate degree from the University of Mumbai.
• L.L.B from Government Law College.

Membership and Affiliations:

• Chairman of Merck Ltd, FCI OEN Connectors Ltd., Armstrong World Industries India Pvt Ltd, Romil Finance & Investments Pvt Ltd., Sidham Finance & Investments Pvt Ltd., 20th Century Fox Corp. (India) Pvt Ltd., PZ Cussons India Pvt Ltd.
• Director of Solvay Pharma India Ltd., Johnson & Johnson Pvt. Ltd., Epitome Global Services Pvt Ltd., Indium III (Mauritius) Holdings Ltd., Indium IV (Mauritius) Holdings Ltd., Rediffusion Dentsu Young & Rubicam Pvt Ltd., Global Insurance Brokers Pvt Ltd., Birla Sun Life Trustee Co. Pvt Ltd., Decagon Investments Pvt Ltd., Emerson Process Management (India) Pvt Ltd, Rakindo Developers Pvt Ltd., Snowcem Paints Pvt Ltd., Showdiff Worldwide Pvt Ltd., Wave Suspension Systems India Pvt Ltd., Warner Bros Pictures India Pvt Ltd., Swiss Re Healthcare Services Pvt Ltd., Swiss Re Shared Services India Pvt Ltd., Uhde India Ltd., Chowgule & Co. Pvt Ltd., Chowgule Ports & Infrastructures Pvt Ltd., John Fowler (India) Pvt Ltd., L&t Metro Rail (Hyderabad) Ltd., Morgan Stanley India Capital Pvt Ltd., India Value Fund Trustee Co. Pvt Ltd., Phillip (India) Pvt Ltd. and many more.
• Independent Non-Executive Director of Syngene International Ltd, Sonata Software Limited, Elantas Beck India Ltd, Samson Maritime Ltd., Shrenuj & Company Ltd.

• VISHWANG DESAI: He is the managing partner of Desai & Diwanji, one of the largest and oldest law firms in India. He focuses on corporate and finance law and specializes in M&A, private equity, buy-outs, spin-offs, de-mergers, divestitures, project and structured finance, cross-border transactions, FDI, corporate governance, competition and regulatory issues.

 He has been involved in complex restructurings and buy-outs of large public and private corporations. He has also represented governments and corporations, large public and private corporations, global private equity and hedge funds, lenders, multilateral agencies in large and complex transactions in a variety of sectors.

Education:

• BSc (Chemistry) and L.L.B from Government Law College, Mumbai.

Membership and Affiliations:

• Managing Partner of Desai & Diwanji
• Co-chair, Mergers and Acquisitions Practice Group
• Co-chair, Infrastructure and Project Finance Practice Group

Accomplishments

• Nominated as a leading lawyer by numerous global publications.
• Awarded numerous awards including “Lawyer of the Year” awards by various organizations.

• VIVEK K. CHANDY: He is partner at J. Sagar Associates. Specializing in the areas of Private Equity, M&A and Corporate Commercial work. He has twenty-five years of experience, and a vast body of work in real estate and private equity transactions.

Worked extensively advising on a wide range of issues from acquisitions to structuring transactions in the IT/ ITES, e-Commerce, Healthcare, Real Estate space.

From 2005 after Foreign Direct Investment was permitted in the Real Estate sector, have facilitated huge investment into this sector and also closed over 40 transactions in this field alone over the last five years.

His recent high profile transactions include representing two sovereign wealth funds in their investments into the Healthcare and Real Estate sectors and a global leader in the e-commerce space, in their strategic investment in an Indian company which operates the fastest growing marketplace model website in India.

Education:

• L.L.B from Sri Jagadguru Renukacharya College of Law (1991)

• ZIA MODY: She is one of the founding partners of AZB & Partners and one of India’s foremost corporate attorneys. She started her litigation practice under the name Chambers of Zia Mody (CZM). Zia worked as a corporate associate at Baker & McKenzie, New York, for five years before moving to India to set up practice, establishing the Chambers of Zia Mody in 1984, which then became AZB & Partners in 2004. She is an indisputable leader in corporate law in India. Her firm AZB & Partners is rated first among the top law firms for M&A. She was enrolled as an Advocate with the Bar Council of Maharashtra & Goa in 1978. She serves on various advisory committees of the Confederation of Indian Industry including its National Council and its committees on Corporate Governance, Financial Services, Capital Markets and Legal Services.

Education:

• L.L.B from Selwyn College, University of Cambridge (1978)
• Master’s Degree from Harvard Law School (1980)

Membership and Affiliations:

• Independent Non-Executive Director of CLP Holdings Limited.
• Independent Director of Ascendas India Trust, Ascendas Property Fund Trustee Pte Ltd.
• Deputy Chairman of the Hongkong & Shanghai Banking Corp. Ltd.
• Non Executive Trustee of Observer Research Foundation.
• Member-Governing Board of International Council for Commercial Arbitration.
• Director of London Court of International Arbitration India Pvt Ltd.
• Trustee of J.B. Petit High School for Girls.
• Non-Executive Director of Cambridge India Research Foundation.
• Member of New York State Bar Association.
• Deputy Chairman and a Non-Executive Director of the HSBC Asia Pacific Board.
• She was nominated to be part of the “Committee on Rationalisation of Investment Routes and Monitoring of Foreign Portfolio Investments” formed by the Securities and Exchange Board of India under the chairmanship of Shri K.M. Chandrashekar.
• She was appointed by the Reserve Bank of India in 2014 as a member of Committee on Comprehensive Financial Services for Small Businesses and Low-Income Households which was chaired by Dr. Nachiket Mor.

Accomplishments

• Awarded the “India Managing Partner of the Year – 2016” by Asian Legal Business (Thomson Reuters).
• Features on Fortune India as The 50 Most Powerful Women in Business in India, for 2016.
• Listed by Forbes India (2013, 2014 & 2015) as one of ‘India’s 10 most Powerful women’, Forbes Asia as one of ‘Asia’s 50 Power Businesswomen’ (2015).
• Leading Individual for Banking, Finance, Corporate and M&A and Investment Funds in The Legal 500 Asia-Pacific 2016.
• Euromoney awarded her a Lifetime Achievement award – at Asia Women in Business Law Awards 2015.
• “Outstanding Women Business Leader of the Year – 2013” award at India Business Leader Awards; also “Legal Icon of the Decade – 2013”.
• Best M&A Lawyer of the Year – 2012” award at the Legal Era Awards and she has been voted as “Business Woman of the Year, 2010” by the Economic Times, for which she was felicitated by The Society of Indian Law Firms (SILF).
• She has also been voted by the Economic Times as one of the country’s most powerful CEOs (2004 to 2016).
• She has been selected as one of the 25 most powerful women in business by Business Today in 2004-2014.
• Asialaw Profile hailed her as one of ‘The Leading Lawyers – India’ in the fields of Mergers & Acquisitions, General Corporate Practice, Dispute Resolution, Corporate Governance and Capital Markets & Corporate Finance for 2013, while Asia Pacific Legal 500 and Chambers Global, have identified her as a leading individual in the Corporate Mergers & Acquisition, Private Funds, Private Equity, Litigation and Infrastructure Sectors.

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In this article,Shrey Verma gives an overview of Witness Protection Scheme in India.

Introduction

Witness are regarded as one of the most indispensable element in the criminal justice system. It is because of them that the trial finds some substance so as to arrive at a fair conclusion. The inputs provided by the witness may have direct bearing on the conviction or acquittal of an accused, hence it is desired that such witness be protected from the wrath of extraneous factors that have the capability to change his stance over a particular case. Extraneous factors in form of corruption or threats form a majority which result in turning of the witness hostile, hence it becomes rudimentary for the state to ensure protection of such witness so as not to alter the prescribed course of justice.

Definition of Witness

‘Witness’ has nowhere been defined in the Code of Criminal Procedure Code, 1908 or in the Indian Evidence Act, 1872. The Black’s Law Dictionary defines it as: “In the primary sense of the word, a witness is a person who has knowledge of an event. As the most direct mode of acquiring knowledge of an event is by seeing it, ‘witness’ has acquired the sense of a person who is present at and observes a transaction.”

Further, The Witness Protection Scheme, 2018 defines ‘witness’ as: “‘Witness’ means any person, who possesses information or document about any crime regarded by the competent authority as being material to any Criminal proceedings and who has made a statement, or who has given or agreed or is required to give evidence in relation to such proceedings.”

Witness Protection Scheme, 2018

The Supreme Court on December 6th, 2018 gave its nod for approval of the Draft Witness Protection Scheme which had been prepared by the inputs from 18 States/Union Territories, various open sources inviting suggestions from police personnel, judges and civil society which was then eventually finalized by the National Legal Services Authority (NALSA). The bench comprising of Justice A.K. Sikri and Justice S. Abdul Nazeer identified the rights of the witness to testify within the ambit of Article 21 of the Constitution and said “The right to testify in courts in a free and fair manner without any pressure and threat whatsoever is under serious attack today. If one is unable to testify in courts due to threats or other pressures, then it is a clear violation of Article 21 of the Constitution.” Further, the bench regarded the scheme as a ‘law’ within Article 141/142 of the Constitution and the centre and state need to follow it until a competent legislation is made on the same subject.

Need for this Scheme

It is a rule of law that no rights of the witness should be prejudiced by way of threats, intimidation or corruption therefore, to allow him to testify for or against the case which he had been a witness to with full liberty.  In the words of Jeremy Bentham “Witnesses are eyes and ears of the Courts”, hence, it becomes imperative on part of the State to provide adequate protection to the witness to ensure ideal working of the wheel of justice. The need to protect witnesses has been emphasized by the Hon’ble Supreme Court of India in Zahira Habibulla H. Sheikh and Another v. State of Gujarat[1] wherein while defining ‘Fair Trial’, the Hon’ble Supreme Court observed that “If the witnesses get threatened or are forced to give false evidence that also would not result in fair trial”. Further the hon’ble Supreme Court of India also held in State of Gujarat v. Anirudh Singh[2] that: “It is the salutary duty of every witness who has the knowledge of the commission of the crime, to assist the State in giving evidence.”

The need for this scheme had been envisaged by various reports of the Law Commission of India and the Malimath Committee. The 14th Law Commission Report was the first ever instance where the issue of witness protection was brought forth. Further, the 154th Report dealt with the plight of the witnesses. The 172nd and 178th Report laid emphasis on protection of witness from the wrath of the accused. The 172nd Report in particular inherited a great deal from the judgement in Sakshi v. Union of India[3] which advocated for in camera trials to keep the witness away from the accused and to ensure her testimony is procured without any public fear. The 198th Report titled “Witness Identity Protection and Witness Protection Programmes” emphasized that the witness protection scheme need not be limited to cases of terrorism or sexual offences but should extend to all serious offences, thereby increasing the ambit of its applicability and functioning.

The ‘Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power’ adopted by the United Nations General Assembly in November 1985 regarded the victims of crime to be an important witness and gave forth four objectives, the applicability of whose need to be ensured by the member nations towards the victims of crime:

(i) Access to justice and fair treatment

(ii) Restitution

(iii) Compensation

(iv) Assistance

Rights of the witnesses

There needs to be a certain sense of safety that need to be given by the state to the witness who comes forward to testify and it is the responsibility of the State to impart adequate protection to the witness. The various Law Commission Reports and the Witness Protection Scheme had identified certain rights that a witness possess:

(i) Right to secure waiting place while at Court proceedings;

(ii) Right to information of the status of the investigation and prosecution of the crime;

(iii) Right to be treated with compassion and dignity and respecting privacy;

(iv) Right to protection from harm and intimidation;

(v) Right to give evidence without revealing identity; and,

(vi) Right to a stay at a safe place and transportation.

It shall be mandatory for Investigating Officer/Court to inform each and every witness about the existence of “Witness Protection Scheme” and its salient features.

Type of Protection Measures

As per the provisions of the Victim Protection Scheme, 2018, the magnanimity of protective measures taken up by the competent authority shall always be proportional to the threat faced by the witness for the given period of time. They may include but is not limited to the following:

• To ensure that the accused and the witness are not put up together during a trial or investigation
• Contacting the telephone company to allot the witness an unlisted telephone number;
• Giving adequate security to the witness in form of body protection, regular patrol and by use of security devices such as CCTV, fencing, security doors in his home;
• Change in identity of the witness and suppressing the original identity;
• Changing the residence of the witness to somewhere else;
• Providing a conveyance in a Government vehicle to and from the court on the date of hearing;
• To ensure the presence of an additional person at the time of recording statements of the witness;
• Holding of in-camera trials;
• Using specially designed courtrooms equipped with one way mirrors, separate passage for the accused and the witness along with options to modify the face or using voice change mechanisms through software, of the witness to suppress his identity;  
• Giving timely financial aids for the subsistence of the witness from the Witness Protection Fund;
• Apart from the above protection measures, other miscellaneous measures may be taken up at the request of the witness;

Apart from the above protective measures, the witness may ask for himself any other measures by way of an application forwarded to the Competent Authority.

Procedure for filing and processing the application under the scheme:

(i) the applicant seeking protection under this scheme has to file an application (application form attached in Annexure 1) before the competent authority having territorial jurisdiction along with supporting documents through the Superintendent of Police or at the time of the trial;

(ii) on receipt of application by the competent authority, the Commissioner will formulate a Threat Analysis Report keeping in mind to impart full confidentiality to the information mentioned therein and forward the report to the competent authority within five working days;

(iii) in matters of urgency where there is imminent threat an interim order for the protection of witness and his family members can be passed;

(iv) the Threat Analysis Report shall contain the threat level perception and may also contain some suggestive measures for adequate protection of the witness and his family members;

(v) hearings in matter of Witness Protection Application shall be held in-camera by the competent authority to maintain full confidentiality;

(vi) overall implementation of the witness protection order to be made by the head of Police of the State/UT;

(vii) if in case there is a need to revise the Witness Protection Order previously passed, the Competent Authority may forward the same to the Commissioner of Police to draft a fresh Threat Analysis Report.

Protection of witness is directly proportional to the threat level perception:

The scheme has divided the witnesses as per threat perception into three categories:

The Category ‘A’ forms the gravest among all because the threat extending therein may find its presence even after the trial or investigation is complete.

Protection of Identity

The scheme recognizes the protection of identity of the witness. If the witness desires to protect his identity he may file an application in the prescribed form as per the Scheme before a Competent Authority. The competent authority there looks out for the Threat Analysis Report for ascertaining the quantum of threat possessed by the witness or his family members and whether it meets the requirements to be eligible for an identity protection order. However, during the course of examining the application, the identity of the witness should not be revealed to any person and after the aforesaid examination the competent authority to dispose off the application basis the material available on record.

Once an order of concealment of identity is passed by the Competent Authority it shall be the responsibility of Department/Ministry of Home of State/UT/Witness Protection Cell to ensure that identity of the witness or his family members be fully protected.

Change of Identity

The witness also has the option to change his identity in appropriate cases, the request for change in identity by the witness is to be entertained by the Commissioner of Police or the SSP in District Police on the parameters of threat perception.

The witness can be conferred with new identities including new name, profession and parentage and providing supporting documents acceptable by the Government agencies. However, such change in identity shall have no bearing over the educational, professional or property rights of the witness.

Relocation of Witness

In the similar manner as above by following the procedural formalities and eligibility, the witness has to option to be relocated to a different place within the limits of State/Union Territory or territory of Union of India keeping in view the safety, well-being and welfare of the witness.

Witness Protection Fund

Under the scheme, there shall be a Witness Protection Fund operated by the Ministry or Department of Home Affairs under the State or Union Territory, from which the expenses of implementation of the Witness Protection Order have to be met. The fund is to be maintained by the States and Union Territories and shall comprise of:

(i) budgetary allocation made by the Annual Budget presented by the State Government;

(ii) receipts of fines imposed under Section 357 of Code of Criminal Procedure ordered to be deposited by the courts;

(iii) donations and contributions from various charitable trust, philanthropist and individual permitted by the Government;

(iv) funds contributed under Corporate Social Responsibility.

Drawbacks of the Scheme

Even though the scheme offers a great deal of respite to the witnesses regarding their safety during the continuance of the trial and in exceptional cases even after the trial is complete, but it also suffers from certain flaws such as:

(i) the functioning criminal justice system is the responsibility of the State and some states may not have adequate resources to implement this scheme effectively. The alternative to this is assistance by the centre but nowhere in the scheme the centre has been entitled to give in a single penny for the Witness Protection Fund;

(ii) the functioning of the Witness Protection Order has been made limited only to three months;

(iii) the task of deciding the contents and preparation of the Threat Analysis Report has been accorded to the head of the police in the district, so in high profile cases involving politicians or influential people the police officer can be put under pressure to provide those people the information regarding the witness.

Conclusion

The Witness Protection Scheme, 2018 has been approved by the Supreme Court in its landmark judgement of Mahendra Chawla v. Union of India, making it the first attempt to bring the protection of witness under the ambit of law and putting the responsibility on the State to implement it effectively.

Annexure 1 – Application Form under Witness Protection Scheme:

Witness Protection Scheme, 2018

Witness Protection Application

under

Witness Protection Scheme, 2018

Before,                                                                                                             (To be filed in duplicate)

The Competent Authority,

District Legal Services Authority

…………………………………………………………

Application for:

1. Witness Protection ………
2. Witness Identity Protection ………
3. New Identity ………
4. Witness Relocation ………

• Witness shall file a separate undertaking under his/her signature that he/she shall fully co-operate with the Competent Authorities and Department/Ministry of Home of State/UT and Witness Protection Cell.

• Applicant/witness can use extra sheets for giving additional information.

                                                                                                                  _____________________

                                                                                                                        (Full Name with signature)

Date: …………………………

Place:…………………………

Endnotes:

[1] (2004) 4 SCC 158.

[2] (1997) 6 SCC 514.

[3] 2004 (2) ALD Cri 504.

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Abstract

Private defence is a right available to every citizen of India to protect themselves from any external force that can result into any harm or injury. In layman’s language it implies the use of otherwise unlawful actions in order to protect oneself or any other individual, to protect property or to prevent any other crime. Section 96 to 106 of Indian Penal Code 1860 contains the provisions regarding the right of private defence available to every citizen of India. . Citizens of every free country should be provided with the right of private defence in order to protect themselves from any imminent danger at the time when the state aid is not available or possible. This right should be read with the duty of the state to protect its citizens as well as their property It was granted as a right for self protection to every citizen of India but it is often misused by many people by treating it as an excuse of committing any crime or offence. Therefore this right to private defence is subject to certain restrictions and limitations. Though the right of private defence was granted to citizens of India as a weapon for their self defence this is often used by many people for evil purposes or unlawful purposes. Now it is the duty and responsibility of the court to examine whether the right was exercised in a good faith or not. The extent of exercise of this right doesn’t depend on actual danger but instead on the reasonable apprehension of the danger. . The right can be extended by an accused in some circumstances but only to a certain degree, which would not invalidate the right of private defence.

Keywords:  extent, good faith, imminent, invalidate limitations, extent, reasonable apprehension, unlawful.

SYNOPSIS

Introduction

In layman’s language it implies the use of otherwise unlawful actions in order to protect oneself  or any other individual, to protect property or to prevent any other crime. Section 96 to 106 of Indian Penal Code 1860 contains the provisions regarding the right of private defense available to every citizen of India. This right can only be exercised in case of overhanging danger and state aid or help is not available. . This right has basically evolved with the time by judgments and decisions of the Supreme Court of India. One of the most important principles of private defense is the ‘reasonableness’ of the defense used. There are various limitations as well as exceptions to this right and will be stated in the paper. Some remedies are also available in case of misuse of this right according to the maxim ‘ubi jus ibi remedium’ i.e. where there is a right there is a remedy.

Identification of Issues

• The right to private defense is available only when recourse to public authorities is not available to the person.

• The extent of the exercise of the right is not dependent on the extent of actual danger but on the reasonableness of the apprehension of the danger.

• Misuse of the right of private defense.

• Burden of proof in cases of private defense.

• Reasonableness of the defense used.

Objectives and scope of research

• To study the right of Private defence available under section 96 to 106 of Indian Penal Code 1860.

• To investigate various necessities, limitations and exceptions to this right and its applicability in Indian as well as other legal systems.

• To study the judicial perspective of private defence and analyze it.

Research Methodology

Research methodology followed by me is purely doctrinal and does not involve empirical approach. My research is based on the authoritative texts. The sources for completion of this dissertation will be both primary and secondary. Primary to the extent that the books will be referred. Data will be collected from judgments and legislation’s. Secondary resources such as World Wide Web and articles published therein will also be made use of.

Chapterisation

• Introduction

• Nature

• Scope

• Misuse

• Concept of Private defense in Indian Legal system and in other legal systems

• Judicial Perspective and leading cases

• Conclusion

The right of Private Defense under IPC

Introduction

It is a right available to every citizen of India to protect themselves from any external force that can result into any harm or injury. In layman’s language it is basically a right of self defence. It is mentioned in the sections 96 to 106 of Indian Penal Code 1860.’Nothing is an offence which is done in exercise of the right of private defence’- It implies any harm done or injury caused to any person in the course of protecting himself from the external force or harm is not an offence as per Indian Penal Code 1860.

The right of Private defence has evolved in modern India but initially it was proposed by an ebullient Macaulay 150 years ago in his draft code with the aspiring task of empowering a “manly spirit among the natives or locals. An ideal Indian in case of any risk or danger would persevere and not be reluctant to protect his own body or property, or that of another. He would react with cautious power to avoid certain harms and injuries even to the degree of causing death of someone.

In most common language it implies the use of generally or otherwise unlawful actions in order to protect oneself or any other individual, to protect property or to prevent any other crime. Simply it can be termed as any action done in the course of self protection. According to Article 51(a)(i) of  Indian Constitution  the State is having a fundamental duty of the state to protect public property and abjure violence. It implies that it is the fundamental duty of the state to protect its citizens and their property from any harm, and in case the aid or help of state is not available and the danger is overhanging and is unavoidable at the moment then the person is authorized to use his force to protect himself from any harm or injury. The term private defence is not properly defined anywhere in penal code, it has generally developed and evolved over the years by the judgments of the various courts. The main motive behind providing this right to every citizen was to remove their hesitation in taking any action (generally illegal) to protect themselves due to the fear of prosecution.

Nature

Self help is the first principle i.e. it is the first duty of a person to help himself. Citizens of every free country should be provided with the right of private defence in order to protect themselves from any imminent danger at the time when the state aid is not available or possible. This right should be read with the duty of the state to protect its citizens as well as their property. But no state, no matter how much rich it is or how large are its resources can afford to deploy a policemen for each and every citizen to protect themselves from any external harm or injury. So in order to fulfill its fundamental duty it has given this power to the citizens itself, that they are authorized by the state to take the law in their own hands if it’s the matter of their self defence. While exercising this right one thing should be taken into consideration that the right of private defence can only be exercised if there is no time to call the police or no help can be provided by the state authorities in the given time i.e. aid from the state is not available. Any unlawful act committed by any person in course of self defence is not considered as an offence and does not, therefore, give rise to any right of private defence in return. The right is not dependent on the actual criminality of the person resisted. It depends solely on the wrongful or apparently wrongful character of the act attempted, if the apprehension is real and reasonable, it makes no difference that it is mistaken.

Scope of Private Defence

Sec 97 of IPC states that every citizen is having this right subject to certain restrictions (mentioned in sec 99) to defend his own body or body of any other person, against; any offence affecting to the human body; the property whether immovable or movable, of himself or of any other person, against any act, which is an offence falling under the definition of robbery, theft, mischief, criminal trespass or which is an attempt to commit theft, robbery, mischief or criminal trespass.

This implies that Self help is the first principle i.e. it is the duty of a person to help himself and then arises a social duty to help other members of the society. The social duty arises out of the Human sympathy to protect others and their property.

As per sec 98 of IPC when an act which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act was that offence

And according to sec 106 of penal code If, in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk or harm to an innocent person, his right of private defence extends to the running of that risk.

The extent of the right of private defence and the limitations in the exercise of this right may be summarized as below: —

(1) There is no right of private defence against an act which is not in itself an offence under this Code. This does not cover the case of exceptions.

(2) The right commences as soon as and not before a reasonable apprehension of danger to the body arises from an attempt or threat to commit some offence. The right is availed of only against a danger imminent, present and real.

(3) It is defensive and not a punitive or retributive right. In no case the right extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence, though reasonable allowance should be made for bona fide defender.

(4) The right extends to the killing of actual assailant when there is a reasonable and imminent danger of the atrocious crimes enumerated in the six clause s of Section 100.

(5) There must be no safe or reasonable mode of escape by retreat, for the person confronted with an impending peril to life or of grave bodily harm except by inflicting death on the assailant.

(6) The right being, in essence, a defensive right, does not accrue and avail where there is time to have recourse to the protection of public authorities.

Misuse   

It was granted as a right for self protection to every citizen of India but it is often misused by many people by treating it as an excuse of committing any crime or offence. It is a right granted for defence and not for vengeance and may not be used as a measure of taking revenge. This right of private defence is not available against any lawful action i.e. when the actions of a person are lawful and not resulting into any offence the right of private defence can’t be utilized. Sometimes some people provoke others to act in aggression and use it as an excuse for the harm caused and even murder. But this can’t be used in a situation where the aggression was shown by the accused only. It is treated as license to kill by many people as the IPC is not in clear on the situation where an attack may be provoked as pretence of killing. But the court has asserted that the private defence is available only to the persons who act in good faith and don’t misuse ita as an excuse to justify their unlawful act or act of aggression. it was further stated by the court “while providing for the right of private defence, the penal code has surely not devised a mechanism whereby an attack may be provoked as a pretence for killing”.

The Right of Private Defence in other legal systems:

American law

The right of Private defence in American legal system is quite similar as in Indian legal system

Two points of utmost importance in American legal system:

• Principle of reasonableness i.e. the right commences as soon as and not before a reasonable apprehension of danger to the body arises from an attempt or threat to commit some offence. The right is availed of only against a danger imminent, present and real.
• Force should be proportionate to the harm i.e. only that amount force should be used that is necessary to avoid the threatened injury or harm.

English Law

In English legal system the right of private defence is granted under Criminal law act 1967. Sec 3(1) of this act states that A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.

Sec 3(2) – Subsection (1) above shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose.

In English Legal system this right helps in complete discharge or acquittal of a defendant as the force used by him wasn’t illegal. But whether he should be acquitted or not depends on the decision of the court. The court analyses the reasonableness of the defence used by him. The court analyses:

• Reasonableness of the defence i.e. the right commences as soon as and not before a reasonable apprehension of danger to the body arises from an attempt or threat to commit some offence. The right is availed of only against a danger imminent, present and real.
• Injuries caused by the accused
• Injuries caused to the accused
• Accession of threat to his safety

According to the jury a person should act in good faith and don’t try to misuse this right by using it as an excuse of justifying their legal act and get acquitted for their offence. Like Indian legal system the right of private defence in English legal system has evolved over the years with the judicial decisions and judgments.

In Beckford vs. the Queen it was held that

In Lord Morris in Palmer v R stated the following about someone confronted by an intruder or defending himself against attack:

In case of Palmer v The Queen, on appeal to the Privy Council in 1971 the concept of reasonable force was defined:

Judicial Perspective and leading cases

The framers of Indian penal code left this concept of Private defence in a ‘imperfect state’ i.e. the term private defence is not properly defined in the provisions of penal code  , it usually developed or evolved over the years with judgments and decisions of the courts. The provisions were framed by the framers of the code in a way that such provisions can be interpreted and analyzed by the judiciary and can be modified according to different situations and cases to maintain the principle of fairness while providing justice to the people of our country i.e. they left it in a flexible state. They followed the Rawls principle of justice that it is the moral obligation of the court to act on the basis of fair adjudication between competing claims. As such it is linked to fairness, entitlement and equality. And also justice can’t be sacrificed on account of cost, speed and expediency. But their intention was only partly fulfilled as the local judiciary acts in a bit strict manner in comparison to higher judiciary while interpreting this term private defence and  this inconsistency between the judicial interpretation and the intention is mentioned in the sections 100 and 102 of penal code(explained under the head of ‘reasonable apprehension’). The Court interpreted and analyzed the right of private defence in various landmark cases.

Munshi ram and others vs. Delhi administration

Though the appellants in their statement under S.342 Cr.P.C denied having been present at the scene of occurrence or having caused injuries to anyone, the plea taken on their behalf at all stages was one of private defence. Their case is that their relation Jamuna (DW3) was the tenant in the land for over thirty years. His tenancy was never terminated. He had raised crops in the field in question. There was no delivery on June 22, 1962. If there was any delivery as alleged by the prosecution, the same was without the authority of law and such was no effect. Hence, jamuna continued to be in possession of the property even on July 1, 1962. On the day prior to occurrence, PWs 17 and 19 tried to intimidate jamuna to come to terms with them and to peacefully deliver the possession of property to them. But he put off the question of compromise by pleading that he was going out of station and the question of compromise could be considered after his return. With a view to forcibly assert their right to the property, the complainant-party came to the field in a body on July 1, 1962with a tractor. At that time PW 19 was armed with an unlicensed pistol. It is at this stage that the appellants who are near relations of Jamuna went on the field and asked the complainant party to clear out of the field. When they refused to do so, they pushed them and thereafter used minimum force to throw them out of the field. On the basis of the above facts, it was urged on behalf of the appellants that they were not guilty of any offence.

The law relating to defence of property is, set out in S.97 IPC, which says that every person has a right, subject to the restrictions contained in s.99, to defend-First-his own body, and the body of any other person, against any offence affecting the human body; Secondly- the property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass. Section 99 of the code lays down that there is time to have recourse to the protection of public authorities. It further lays down that the right of private defence in no case extends to the inflicting of more harm then it is necessary to inflict for the purpose of defence.

It was urged on behalf of the prosecution that even assuming that Jamuna was in possession of the field in view of the delivery that had taken place on June 22, 1962, he and his relations had enough time to have recourse to the protection of public authorities and therefore the appellants could not claim the right of private defence. The case of Jamuna and the appellants was that they were unaware of the alleged delivery on June 22, 1962. Admittedly neither jamuna nor any of the appellants were present at the time of delivery. Nor is there any evidence on record to show that they were aware of: the same. Further, as seen earlier, the conversation that PWs 17 and 19 had with jamuna on the day prior to the occurrence, proceeded on the basis that Jamuna was still in possession of the field. Under these circumstances when the complainant party invaded the field on July 1 1962, Jamuna’s relations must have been naturally taken by surprise. Law does not require a person whose property is forcibly tried to be occupied by the trespassers to run away and seek the protection of the authorities. The right of private defence serves as a social purpose and that right should be liberally construed. Such a right not only will be restraining influence on bad characters but it will encourage the right spirit in a free citizen. There is nothing more degrading to the human spirit to run away in the face of peril.

State of UP vs. Ram Swarup

Facts- On 7^th June 1970 at about 7 a.m. one Ganga Ram went to the market to purchase a basket of melons in subzi mandi Badauin, Uttar Pradesh. A person called Sahib Datta Mal alias Munimji who was the melons vendor refused to sell it saying that it was already marked for another customer. This led to the exchange of hot words and Munimji asserting his authority said that he was the thekedar of the market and his words were final. Ganga Ram could not take the challenge and left in huff.

“The Supreme Court Held that the right of private defence is a right of defence, not retribution. It is available in face of imminent peril to those who act in good faith and in no case can the right to be conceded to a person who stage-manages a situation where in the right can be used as a shield to justify an act of aggression.”

An hour later Ganga ram along with his three sons Ram Swarup, Somi and Subhash went back to the market. Ganga ram had a knife, Ram Swarup had a gun and two others carried lathis. They advanced aggressively to the car of Munimji who, taken by surprise rushed to take shelter in the neighboring kothi. But before he could retreat Ram Swarup shot him dead at point black range.

All four accomplices were tried under Sec 302 of Indian penal Code for murder of Munimji. Ram Swarup was convicted to life imprisonment by the session’s court. However, Somi and subhash were acquitted. The High Court of Allahabad acquitted Ganga Ram and Ram Swarup in an appeal filed by them and dismissed the appeal filed by the state against the acquittal of Somi and Subhash. The defence taken by the accused was that when at 8 a.m. they reached the market, there was a scuffle between the deceased Munimji and Ganga ram, and Ganga Ram was being assaulted by lathis by the servants of the deceased and seeing his father’s life in danger Ram Swarup fired shots from the gun he was carrying in the right of private defence.

And this case 2 most important questions were answered by the court:

• What constitutes Private defence?
• Whether the accused herein is having the right of private defence in the given set of circumstances?

“Sec 100 of IPC providing right of private defence of the body, extends to the voluntary causing of the death, if the offence which occasions the exercise of the right is of such nature as may, to the extent material, reasonably cause the apprehension that the death or grievous hurt will otherwise be the consequence of the assault”.

According to Supreme court the IPC doesn’t provide the right of private defence as a causing of death, if the offence which occasions the exercise of the right is of such nature as may, to the extent material, reasonably cause the apprehension that the death or grievous hurt will otherwise be the consequence of assault. It was held that in the present case the circumstances were not such that Ram Swarup would have been held compelled to kill the deceased by firing. The mere possibility of the scuffle, cannot justify the killing of the deceased. Therefore, the plea of Right of Private defence taken Swarup was dismissed.

The principles laid down by the Supreme Court are very relevant and the same has become precedent to for a plea of right of private defence.

Darshan Singh v. State of Punjab

The Supreme Court laid down Guidelines for Right Of Private Defence for Citizens. It observed that a person cannot be expected to act in a cowardly manner when confronted with an imminent threat to life and has got every right to kill the aggressor in self defense. A bench comprising Justices Dalveer Bhandari and Asok Kumar Ganguly, while acquitting a person of murder, said that when enacting Section 96 to 106 of the IPC, the Legislature clearly intended to arouse and encourage the spirit of self-defense amongst the citizens, when faced with grave danger.“ The law does not require a law-abiding citizen to behave like a coward when confronted with an imminent unlawful aggression. As repeatedly observed by this court, there is nothing more degrading to the human spirit than to run away in face of danger. Right of private defense is thus designed to serve a social purpose and deserves to be fostered within the prescribed limit.”

The court laid down ten guidelines where right of self-defence is available to a citizen, but also warned that in the disguise of self-defence, one cannot be allowed to endanger or threaten the lives and properties of others or for the purpose of taking personal revenge. The apex court concluded by saying that a person who is under imminent threat is not expected to use force exactly required to repel the attack and his behaviour cannot be weighed on “golden scales.”

The Court declared their legal position under the following 10 guidelines:

• Self-preservation is a basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defense within certain reasonable limits.
• The right of private defense is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.
• A mere reasonable apprehension is enough to put the right of self-defense into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defense. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defense is not exercised.
• The right of private defense commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.
• It is unrealistic to expect a person under assault to modulate his defense step by step with any arithmetical exactitude.
• In private defense the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.
• It is well settled that even if the accused does not plead self-defense, it is open to consider such a plea if the same arises from the material on record.
• The accused need not prove the existence of the right of private defense beyond reasonable doubt.
• The Indian Penal Code confers the right of private defense only when the unlawful or wrongful act is an offence.
• A person who is in imminent and reasonable danger of losing his life or limb may, in exercise of self defense, inflict any harm (even extending to death) on his assailant either when the assault is attempted or directly threatened.[ix]

Conclusion

Though the right of private defence was granted to citizens of India as a weapon for their self defence this is often used by many people for evil purposes or unlawful purposes. Now it is the duty and responsibility of the court to examine whether the right was exercised in a good faith or not. There are several important points that the court will take into consideration while making its decision:

• Injuries caused by the accused
• Injuries caused to the accused
• Whether the state aid was available ( whether the accused had time to contact the public authorities)
• Accession of threat to his safety

Also the Indian Penal Code doesn’t properly define this right and it has evolved over the years with judgments and decisions of the Courts in various landmark cases as stated above for example Munshi ram and others vs. Delhi Administration, State of U.P vs. Ram Swarup and several other cases. But it is also argued that the wordings of the sections need no further clarification than has already been done by the courts as it was the foresight of the legislature to grant such wide discretion to the courts that they may cover within their ambit, the entire gamut of situations which might arise and meet the ends of justice.

The extent of exercise of this right doesn’t depend on actual danger but instead on the reasonable apprehension of the danger (whether there was any reasonable apprehension of the danger) . The right of private defence is available when one is suddenly confronted with the immediate necessity of averting and impending danger, it commences as soon as reasonable apprehension arises and continues with apprehension. The right can be extended by an accused in some circumstances but only to a certain degree, that would not invalidate the right of private defence i.e. only such amount of force should be used that is required to dispel the threat or counter the attack.

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How can we make our new year special? Definitely? Without fail?

I know a sure shot way. It is by extending a helping hand.

Here is what we will do from LawSikho.com. We don’t have to be a big company to help people. We can’t help everyone, but surely we can help a few.

With more years under our belt and more resources, we will do a lot more one day.

But let’s not wait to start doing good things.

We are going to offer an unlimited scholarship to 3 individuals who have been out of employment for at least 3 months.

They can choose any of our courses, participate, get all the support that we give to our paid students.  Also, we will bring the full force of our network behind them so that they can get connected to the right opportunities.

Everybody deserves a new beginning in the new year.

Unfortunately, we can’t do this for more than 3 people right now. We are a small business with limited means.

If you can think of someone who deserves this opportunity, forward this mail to them, and ask them to write back with their story and explain why they are the right person to get this opportunity.

Remember, this is only for people who have been previously employed but does not have a job right now and requires help.

I will read all the responses, and select the 3 I believe we can help the best and really need it. I will share their names and stories with all of you, and ask for your help too! Let’s elevate those people as a community, together. That’s how we are going to celebrate the new year here.

But first of all, we need to reach the people who really need this. Please forward this mail to your friends who may know people who need this, and maybe pick up the phone and call a couple of people.

They can visit lawsikho.com/courses and check out what we offer. We have over 8 courses starting in January. Here is a list:

Diploma courses

Diploma in Intellectual Property, Media and Entertainment laws.
Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution.
Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions).
Diploma in Cyber Law, Fintech Regulations and Technology contracts.
Diploma in Entrepreneurship, Administration and Business Laws.

Executive Certificate Courses

Certificate course in Advanced Criminal Litigation & Trial Advocacy.
Certificate course in Advanced Corporate Taxation.
Certificate course in Companies Act.
Certificate course in Insolvency and Bankruptcy Code. 

Let’s do it.

Looking forward to this reaching the people who really need it. It all depends on you now!

The post How you can make this new year special appeared first on iPleaders.

In this article, Shrey Verma discusses the prerequisites for writing the All India Bar Exams.

Introduction

The All India Bar Examination had been introduced by the Bar Council of India in 2011 to regulate the entry of professionals in the legal field. With as many as 1700 law colleges across India producing close to 4-5 lac law graduates, it became indispensable to ensure only those who possess minimum competence to be allowed to practice law at all level of courts.

The examination takes place bi-annually with the object to examine the capability of an advocate to practice the profession. It is aimed to assess the knowledge of the law at a basic level along with the applicant’s analytical ability.

Is passing the exam compulsory?

The All India Bar Examination shall be mandatory to all law graduates who wish to practice in a court of law. A law graduate has to first register himself/herself as an advocate under Section 24 of the Indian Advocates Act, 1961 then proceed with passing the examination so as to receive a Certificate of practice from the Bar Council of India which entitles a person to practice law in courts.

 Essentials of the Examination

(i) the examination is held twice a year in various places simultaneously which are prescribed by the Bar Council of India from time to time;

(ii) the examination is set to test the candidates on the parameters of substantive and procedural laws;

(iii) the scope and syllabus of such substantive and procedural law shall be dictated by the Bar Council of India three months prior to the examination;

(iv) the minimum percentage of marks required to pass the exam to be decided by the Bar Council of India;

(v) there is no limitation on the number of attempts an advocate may take to pass the examination;

(vi) the Bar Council, along with the committee of experts, to determine the syllabus, paper setting, moderators, evaluators, model answers, reading material and other relevant.

(vii) the format and the manner in which the paper will be presented shall be determined by the Bar Council of India;

(viii) the candidates to have the option to give the examination in any one of the 11 languages provided by the Bar Council of India in the application form;

(ix) upon successful passing of the examination, the candidate to be given a Certificate of practice by the Bar Council of India.

Eligibility

(i) the candidate appearing should be a citizen of India;

(ii) the candidate must possess an LL.B. degree from any college recognized by the Bar Council of India. (an Indian National holding a foreign law degree shall be entitled to give a different qualification examination consisting of six subjects which are to be prescribed by the Bar Council of India);

(iii) the candidate should be enrolled as an advocate as per the provisions of the Indian Advocates Act, 1961;

(iv) law students who have graduated after 1st July, 2010 are eligible to give the examination.

Hence, the candidates who do not meet the eligibility criteria are required not to register themselves. If on a later stage, a candidate is found disqualified on any of the abovementioned grounds, his candidature is to be cancelled.

Qualification Examination for Indian Nationals holding a foreign degree

Indian Nationals holding a foreign law degree are required to give a Qualification Examination organized by the Bar Council of India. The examination comprises of six papers consisting of a 100 marks each. Papers are made limited to the following subjects that consist of:

(i) Constitution of India;

(ii) Contract Law and Negotiable Instruments Act;

(iii) Company Law;

(iv) Civil Procedure Code and Limitation Act;

(v) Criminal Procedure Code;

(vi) The Indian Legal Profession and Code of Ethics.     

The questions asked here are subjective as opposed to being objective in the All India Bar Examination. Nevertheless, the Qualification Examination serves the same purpose as that of the All India Bar Examination i.e. to give a permit to practice law.

Number of attempts

The Bar Council of India via a circular clarified that an Advocate who has graduated after 1st July, 2010 can give the All India Bar Examination as many times as it requires him or her to pass such examination. Even an advocate who has been enrolled for more than two years is not barred from appearing in the examination.

Syllabus

The syllabus of the All India Bar Examination as of now is limited to 19 subjects consisting of substantive, procedural and special laws. The subjects are taken from the curriculum prescribed by the Bar Council of India to three-year and five-year law courses across India. The contents of the syllabi are decided by the Bar Council of India and may change from time to time. Each subject/topic carries different weightage in the marks. The syllabus of the recently concluded All India Bar Examination can be found in Annexure 1.

How does the examination work?

(i) The All India Bar Examination consists of 100 multiple choice questions limited to the subjects discussed above.

(ii) The subjects are divided into two categories, first, those which form the ‘foundation’ of law and carry a relatively higher percentage of the questions, second, those which are comparatively new to the legal field and the candidates should have knowledge of such laws.

(iii) The questions are divided into two parts, ‘knowledge-based’ and ‘reasoning based’ to test the overall capability of a candidate.

(iv) The All India Bar Examination is an ‘open book’ examination i.e. the candidates may bring reading materials inside the examination room and can consult the same while answering the questions. However, no candidate should bring any kind of electronic devices, such as laptops or mobile phones.

(v) The prominence is given to the capability of the candidates on the application of law rather than focusing on one’s ability to memorize provisions and case laws.

(vi) The result of the exam only dictates the candidate’s state whether he has passed the exam or not after obtaining the minimum marks. The result does not contain the candidate’s marks, percentage, rank or percentile.

Documents required during the registration

(i) An advocate ID Card issued by the State Bar Council after successful registering as an advocate under the provisions of the Indian Advocates Act, 1961.

(ii) An enrollment certificate that validates the status of the student at their respective University.

(iii) A scanned copy of photo and signature.

(iv) Scanned copy of the category certificate, if applicable.

(v) Scanned copy of the disability certificate, if applicable.

Procedure for filling application form

(i) Go to the official website of All India Bar Examination and click on the Register button available there.

(ii) Fill up the registration form by uploading the necessary documents and other relevant details about the candidate. After the process is complete, click on ‘Save’ button available at the bottom of the page.

(iii) The registration ID and password is generated by the system and is sent via message and e-mail to the phone number and e-mail address provided at the time of registration.

(iv) The enrollment number should contain the State Code as provided by the Enrollment Certificate.

(v) After completion of the submission check the mobile or email for Registration ID and Password.

(vi) Then go to the homepage of the website and click on the ‘Login’ button.

(vii) In the User Login, put the Registration ID and Password received through message or email and enter the ‘Login’ button.

(viii) A page will open with your registration details provided at the time of registration and click on the ‘Print Challan’ button.

(ix) After clicking on the button take a printout of the Challan provided.

(x) When 24 hours have elapsed since the time of the registration, go to any branch of the State Bank of India and make the payment with the printed copy of the Challan.mode of payment has only been restricted to Challan processed by the State Bank of India.

(xi) Make payment in the bank with the amount mentioned in the Challan and retain the sealed and signed applicant’s copy of the Challan.

(xii) Login again on the official website of the All India Bar Examination with the same Registration ID and Password after a minimum of 24 hours after making the payment at the Ban.

(xiii) A page with registration details will appear and there click on ‘Upload Challan and Details’ button.

(xiv) Upload the Challan and provide the Journal Number, SBI Branch Code and the date of Challan given in the Challan copy.

(xv) Go back and click on the ‘Application Form’ button and print the same for future reference.

(xvi) Check whether the details, photograph and signature provided are correct. If there is any error or the form is incomplete, contact the helpline numbers or sent the query via an email.

(xvii) No hard copy of the application forms or the documents are to be sent to the Bar Council of India.

Things to keep in mind while you register

(i) The required documents such as photograph, signature and the enrollment certificate should be self-attested. Any document uploaded without attestation will be rejected.

(ii) The candidate should make sure that all the documents, photograph and signature are correctly uploaded.

(iii) If in case the candidate has committed a mistake while filling the application form or has uploaded a wrong document, the same can be rectified by sending the registration ID along with the query to aibe.bci@gmail.com, before the admit card is released.

(iv) The correct mobile number and email address should be provided as those will be used for all communication by the Bar Council of India regarding the application process.

(v) Applicants availing reservation benefits belonging from SC/ST category are required to upload self-attested copy of their SC/ST certificate and other relating documents.

(vi) In case where the applicant has applied under the benefits of SC/ST category fails to furnish the relevant documents, his candidature is bound to be rejected and the amount so deposited will not be refunded.

How to prepare for the bar exams?

Decide on what materials you are going to carry into the exam hall. Be very familiar with these materials, so that you can find answers very quickly.

Identify the subjects with maximum marks in the exam, and prepare accordingly. Do not waste time on subjects that have too few marks but huge syllabus – this may prevent you from completing the syllabus (Our course on All India Bar Exams will help you to form a strategy for this).

You need to practice mock tests along with carry in materials (These mock tests for bar exams will help you to build expertise in taking open book exams using the material you are going to carry on the exam day).

Open book exams are more difficult. Don’t take it lightly. Remember that 30% people fail this exam.

Create strategies to find answers faster as you have only 1.5 minutes per question to read and find the answer. BarHacker’s proprietary HackSheets will reduce the required effort by leaps and bounds and make passing the exam a cakewalk.

It is impossible to know the entire law, and even if you can carry all books with you, it still wouldn’t serve any purpose because it is a time bound examination. The trick is to be able to access the right information as quickly as possible given the limited amount of time.

This program shall help you strategize your bar exam preparation and teach you how to crack the exam by way of smart-preparation. 

You shall be trained in creating result-oriented approach.

You shall have access to various video tutorials, mock tests and past years paper to help you prepare even at the last minute for the bar exam.

Conclusion

The All India Bar Examination is a recent development brought forth by the Bar Council of India with a view to allow only the deserving advocates who possess certain criteria of minimum competence to be able to get hold of the license to practice in a court of law.

There is a separate qualification examination for Indian nationals having foreign law degrees. After successfully passing the examination, the advocates are given a certificate of practice which entitles them to practice in courts.

Annexure 1 – Syllabus for AIBE

The post Prerequisites for Writing the All India Bar Exam appeared first on iPleaders.

In this article, Nidhisha Garg analyses the Consumer Protection Bill, 2018.

Abstract

The Consumer Protection Bill, 2018 (hereinafter the Bill) was passed by the Lok Sabha on the 20^th of December’ 18. It seeks to replace the Consumer Protection Act, 1986 (hereinafter the Act). This article aims to draw out the salient features of the same and analyze them.

Background

Earlier, two attempts had been made for bringing about a change in the way consumer disputes are dealt with, one in 2011 and another in 2015, but both went futile for reasons like the dissolution of the House or lack of majority. Finally, the current Bill, which was introduced in the Houses of the Parliament in January 2018, has been passed by the Lower House but is yet attain the approval of the Upper House.

Salient Features

One of the most striking features of the Bill is that it provides for a structured system of bodies possessing a gamut of powers, thus, providing for possibly all the available mechanisms of grievance redressal to a potential aggrieved.

• Consumer Dispute Redressal Commission

These are to be set up in the nature of quasi-judicial bodies at the district, state and national levels. They may exercise all powers which have been vested upon a principal civil court of ordinary jurisdiction, under the Civil Procedure Code, 1908. Authority has been delegated upon the Central Government to appoint their members. The Commissions at all the three levels are to be headed by a President. Whereas the District Commission shall consist of 2 members, there shall be 4 members each at the Commissions at the upper levels. Appeals shall lie from a Commission at one level to the next as per hierarchy and finally, an appeal shall lie to the Supreme Court from the National Commission. The powers of the Commissions include but are not restricted to:

• The higher Commissions have authority to decide whether a contract term is unfair or not, and if answered positively, to declare, either the term or the entire contract, as null and void.
• The Commissions shall have the power to order for restraining continuing unfair and restrictive trade practices.

• Central Consumer Protection Authority

This is a Regulatory body to be constituted at the Centre for enforcement of consumer rights. It has the power to issue notifications specifying safety standards, confiscate goods, order for the reimbursement of the consumer by the vendor and penalize them for including deceptive statements and promises in their advertisements. The previous Act did not contain any provision for any such authority.

• Consumer Protection Council

These are to be set up at the district, state and national level, with Ministers-in-charge for Consumer affairs as heads for the latter two bodies and the District Collector overseeing the District Council. They shall tender advice for the promotion and protection of consumer rights.

• Mediation Centers

The Commission may refer a matter for an amicable settlement to any of the mediation cells at the District, State, and National levels if it deems necessary.

Apart from these bodies, there are several other novel definitions in the Bill, when compared to the Act. Some of them are as under:

Section 2(46) of the Bill defines “unfair contract” as “a contract between a manufacturer or trader or service provider on one hand, and a consumer on the other, having such terms which cause a significant change in the rights of such consumer…..”.

Section 2(47) defines an “unfair trade practice” as “a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice and includes: (i) making a false statement regarding the quality or standard of a good or service; (ii) selling of goods not complying with standards; (iii) manufacture of spurious goods; (iv) non-issuance of a receipt for a good or service sold…..”

Section 2(41) defines a “restrictive trade practice” to mean “a trade practice which tends to bring about manipulation of price or its conditions of delivery or to affect flow of supplies in the market relating to goods or services in such a manner as to impose on the consumers unjustified costs or restrictions and shall include…..”

Analysis

The Executive has been given the power to appoint members to the Commission. This may be in contravention to the principle of separation of powers which is also a basic structure doctrine. Also, in certain cases where the government is itself the service provider, for example, the monopoly of the government respecting the provision of railway services. Such an adjudication may go against the principles of natural justice (no one can be a judge in his own cause). This must especially be understood in light of the fact that the demand for passage of the Bill was strengthened during the Rafale controversy, in which case the government in office was itself a party. This also implies a compromise with the independence of the adjudicatory authority.

Also, no qualification has been specified for the appointment of members to the Commission. Since the commissions are to perform adjudicatory functions, it would be much appreciated if the same is discharged by members of the judiciary.

A problem quite evident with the Protection Councils is that the Bill does not specify to whom these bodies are to advise.  Even if we assume they are to advise the Central Government, there remains considerable ambiguity on the question of whether their advice is binding or not.

However, not all aspects related to the bill are deplorable. In fact, the majority of the provisions are capable of being considered as harbingers of a new face to the consumer grievance jurisprudence in India. Previously, under the Act, consumer forums would cause substantial delays in resolving consumer disputes, the average time for a dispute being about a year. The Bill seeks to improve the condition by providing that endeavor shall be made to dispose of a dispute within three months, however, the same may be extended to five months if the dispute requires any kind of analysis, investigation, testing of the product etc.

Under the Bill, a consumer may impose liability on a manufacturer, seller, or service provider, for any defect in a product or deficiency in service. In addition, compensation may also be claimed for any personal or proprietary damage that may have been suffered by the consumer. For example, a person may sue an airline company if it cancels the flight for want of a reasonable cause and without any suitable reparation. The damage need not be restricted to material injuries but may even be in the nature of mental agony or emotional harm.

The Bill also seeks to widen the scope of pecuniary jurisdiction of the District Commissions from 20 lakhs to 1 crore and that of the State Commissions from 1 crore to 10 crores.   Moreover, the Bill also provides for resolution of disputes by resort to alternative mechanisms like Mediation, which provision was absent in the Act. The Act lacks any definition for the terms unfair contracts, unfair and restrictive trade practices. Another provision of the Bill which is welcome is that it seeks to impose liability for misleading advertisements.  Additionally, even though a limitation of two years has been prescribed, the same can be done away with on recording reasonable cause.

Conclusion

Another feature of the Bill, which the author finds very endearing is the fact that the Bill seeks to impose strict liability on the endorsers of harmful products. As a result, celebrities can be brought to book for endorsing harmful products, especially those that are consumable and directly affect the health of the purchasers. The legislature was especially keen on introducing these after the Maggi noodles controversy and was thus quick enough to provide for it the same in the 2015 bill itself, which has rightfully been retained by the Standing Committee of the Parliament in the 2018 Bill as well. Clause 21 of the Bill provides that the liability of the endorser is at par with that of the manufacturer, that is, up to 10 lakh rupees, which may extend to 50 lakhs in case of subsequent faults. The authorities may even restrain them from being involved in the endorsement of any product until one year after the first fault, and up to three years for subsequent faults. This is appreciated since as of now there exist only sparse and scattered provisions across the 1986 Act, the Indian Penal Code, 1860 and the Food Standards and Safety Act.

Notwithstanding the abovementioned provisions, which are much appreciated by the author, the most promising change that the Bill seeks to bring about is to extend its scope, by express mention, to online modes of transactions such as teleshopping and electronic commerce. The provision shows the inclination of the legislators to make the subsequent enactment accommodative of contemporary trends in consumer behavior. With the growing popularity of e-commerce websites, it is only essential that the central legislation dealing with consumer grievance take into account all possible modes through which a consumer may be wronged.

The post Analyzing the Consumer Protection Bill, 2018 appeared first on iPleaders.

In this article, Arunseshan Chandrasekarna discusses pluralism under the Indian Constitution in the wake of the recent judgment of the Supreme Court on Section 377.

“377. Unnatural offences — Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Explanation — Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

Evolution of Section 377

Buggers Act, 1533 enacted under the reign of King Henry VIII is first of its kind that gave meaning to unnatural sex. This act defined the term buggery, an unnatural sexual act against the will of God and man. The Act criminalized homosexuality and bestiality.

In 1828, the act was repealed and replaced by offences against the persons Act, 1828. This Act gave wider and extensive definition for unnatural sex. The said Act was further repealed and replaced by Offences Against Person Act, 1861 (Fig.1).

Unnatural Offences

1. Sodomy and Bestiality.

2. Section 61 of the Offences Against Person Act, 1828 : Whosoever shall be convicted of the abominable Crime of Buggery, committed either with Mankind or with any Animal, shall be liable, at the Discretion of the Court, to be kept in Penal Servitude for Life or for any Term not less than Ten Years.

3. Attempt to commit an infamous Crime (Section 62) – Whosoever shall attempt to commit the said abominable Crime, or shall be guilty of any Assault with Intent to commit the same, or of any indecent Assault upon any Male Person, shall be guilty of a Misdemeanor, and being convicted thereof shall be liable, at the Discretion of the Court, to be kept in Penal Servitude for any Term not exceeding Ten Years and not less than Three Years, or to be imprisoned for any Term not exceeding Two Years, with or without Hard Labour.

4. Carnal Knowledge defined (Section 63) – Whenever, upon the Trial for any Offence punishable under this Act, it may be necessary to prove carnal Knowledge, it shall not be necessary to prove the actual Emission of Seed in order to constitute a carnal Knowledge, but the carnal Knowledge shall be deemed complete upon Proof of Penetration only.

Indian Penal Code, 1860, drafted by Thomas Babington Macualy, Chairman of 1^st Law commission who is the principal architect of IPC, incorporated Section 377, Unnatural Offences inspired from the above-mentioned Acts.

In England, the act of homosexuality was decriminalized in the year 1967 by an amendment in Sexual offences Act, 1967 and UK even accepted same sex marriages and legalized it.

In India, Post-independence, there is no much talks on this subject till early 90’s. By August 11,1991 there was a demonstration by AIDS Bhedbhav Virodhi AndoIan(ABVA) against the suspect and arrest of homosexuals under Delhi Police Act and a petition was sent to parliamentary committee for decriminalizing s.377 of IPC.

In April 1994, the same organization filed a writ petition questioning the constitutional validity of S.377 of IPC in Delhi High Court in a response to an incident happened in Tihar jail, as the authorities refused among inmates for the supply of condoms despite known prevalence of homosexuality.

In 2001, Naz foundation (India) Trust moved a petition in High Court for allowing homosexual relationship between consenting adults. The lawsuit was dismissed mentioning that the organization have no locus standi in this matter.

Further, the Naz foundation appealed against the dismissal of the case in Supreme Court (SC) and SC concurred with the appellant.

In 2009, Chief Justice Ajit Prakash Shah and Justice S.Muralidhar of Delhi High Court pronounced the historic Judgement, decriminalizing consensual sexual acts between adults. Furthermore, this judgement was to be in force until the Parliament decided to amend Section 377 (Naz Foundation v. Government of NCT of Delhi (“Naz Foundation”), 111 DRJ 1 (2009)).

In December 11,2012, two member bench of Supreme Court overruled the judgement of High Court. The Judges added that parliament is the authority that can amend law and not High Court. Hence the Judgement is Constitutionally Unstable.

(Suresh Kumar Koushal and Anr. v. Naz Foundation and Ors. (“Suresh Kumar Koushal”), (2014) 1 SCC 1)

Shashi Tharoor, Member of Parliament, raised awareness in social media and introduced a private bill in parliament allowing adults have consensual non-vaginal sexual intercourse, thus effectively decriminalizing homosexuality. However it was disappointing to see that this bill was almost immediately rejected without it even being introduced.

 National Legal Services Authority v. Union of India (“NALSA”), (2014) 5 SCC 438, which construed Articles 15 and 21 of the Constitution of India as including the right to gender identity and sexual orientation, and held that just like men and women, transgenders could enjoy all the fundamental rights that other citizens of India could enjoy.

 Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors. (“Puttaswamy”), (2017) 10 SCC 1, a nine-Judge Bench of this Court unanimously declared that there is a fundamental right of privacy which enured in favour of all persons, the concomitant of which was that the right to make choices that were fundamental to a person’s way of living could not be interfered with by the State without compelling necessity and/or harm caused to other individuals.

In 2018, Constitution bench of Supreme Court (5-0) heard the constitutional validity of S.377 and pronounced S.377 IPC is liable to be partially struck down for being violative of Article 14 of the Constitution.

Reasons why section 377 of the IPC was held unconstitutional to the extent it criminalises sexual activities between consenting adults – Analysis of the contentions raised

UNION OF INDIA

The judgement of High Court with respect to Suresh Kaushal case regarding the “consensual acts of adults in private” is left to wisdom of Court.

INTERVENORS

S.377 is not violating of Article 15 of Indian Constitution, as the word ‘sexual orientation’ is alien to Indian Constitution.

It was contended that Court only have power to interpret and not to legislate.

Possibility of Social issues and law & order problem as same sex marriages would become social experiment and results will be unpredictable.

Decriminalization of Section 377 will result in cascading effect in existing law. (S.32 (d) of Parsi Marriage Act, S.10 (2) of Indian Divorce Act, 1889, S.13 (2) of Hindu Marriage Act, 1955, S.27 (7)(1A)(A) of Special Marriage Act, 1954.

Married women will become a victim to the act of her bisexual husband

Decriminalizing Section 377 would result foul to all religious view and Article 25 of Indian Constitution should be considered while pronouncing the judgement.

Prevalence of AIDS is more in people involving homosexual acts compared to heterosexuality.

The right conferred upon transgender community is exhaustive as per NALSA case and further relief can be abusive to right to Privacy.

Family system is a base for our tradition and cultural heritage that is prone to get affected.

Section 377 is a result of principles prevailing in ancient India and now in 2018. Hence Section 377 is more relevant legally, medically, morally and constitutionally.

JUDGES VIEW IN CONSTITUTIONAL VALIDITY OF S.377

DIPAK MISRA, CJI. & AJAY MANIKRAO KHANWILKAR, J. 

TRANFORMATIVE CONSTITUTIONALISM

Indian Constitution is a transforming document with respect to the current trends and the words in the documents should not be interpreted literally but constructed meaningfully with respect to changing times. Discrimination in any sense to the people of this country breaks the basic structure of any democratic society.

With the transformative constitutionalism, Doctrine of progressive realization of rights is in play as such rights evolve with the evolution of society. If the view of Suresh Koushal is to be accepted then it is just a denial of progressive realization of rights.

CONSTITUTIONAL MORALITY v SOCIAL MORALITY

The Constitutional morality binds the nation as large as India into one. Hence, the concept of unity and pluralism co-exist. Constitutional morality cannot be martyred at the altar of social morality and it is only the constitutional morality that can be allowed to permeate in the rule of law. As per Dhananjaya Y Chandrachud, J “Section 377 provides for rule by the law instead of the rule of law. The rule of law requires a just law, which facilitates equality, liberty and dignity in all its facets. Rule by the law provides legitimacy to arbitrary state behavior”. The eclipse of social morality cannot be used as a contention to deny the fundamental right of even a single individual.

RIGHT TO LIVE WITH DIGNITY

As written by Judges, The fundamental idea of dignity is regarded as an inseparable facet of human personality. Dignity has been duly recognized as an important aspect of the right to life under Article 21 of the Constitution and quoted Krishna Iyer, J. words, “It has to be borne in mind that dignity of all is a sacrosanct human right and sans dignity, human life loses its substantial meaning.” In the international arena, the right to live with dignity had been identified as a human right way back in 1948 with the introduction of the Universal Declaration of Human Rights. The constitution has given the responsibility to judiciary in protecting the dignity of an individual. Discrimination in the name of sexual orientation, a biological concept, is infringement of a person’s personal liberty, which is violating the freedom of expression.

FUNDEMENTAL RIGHTS ARE NOT FOR MAJORITY

In Suresh Koushal case, it was contended that LGBT community is in minority and that the existence of Section 377 IPC abridges the fundamental rights of a very minuscule percentage of the total population. The reasoning was fallacious as the intention of the framers of our constitution mandates the judiciary to interfere, even if the fundamental right of single individual is in peril.

LITMUS TEST OF Section 377 v Article 14 & 19

S.375 IPC and POCSO Act already penalize non-consensual carnal intercourse. In contrary, S.377 IPC preys the consensual sexual acts which are neither harmful to women nor children. This makes S.377 arbitrary, subjecting LGBT community to Social Pariah and dereliction. Hence violating of A.14 of Indian Constitution.

Carnal intercourse among consenting adults, be it homosexual or heterosexual, in private space, does not in any way harm the public decency or morality. Therefore, Section 377 IPC in its present form violates Article 19(1)(a) of the Constitution.

JUDGEMENT

In concurring with the view of Dipak Mishra, CJI. & A.M.Khanwilkar,J. , Rohinton.F.Nariman,J. Dhananjaya.Y. Chandrachud,J. and Indu Malhotra, J. overruled the judgement of Suresh Kumar Koushal and Anr. v. Naz Foundation and Ors., striking down S.377 only with respect to cardinal intercourse between consensual adults. Any acts that are non-consensual or any cardinal acts with animals fall with in the purview of S.377.

Reference:

1. Offences against the person Act, 1861 (websource) (http://www.legislation.gov.uk/ukpga/Vict/24-25/100/contents/enacted)
2. The judgement of Navtej Singh Johar & Ors v Union of India (websource)
3. Section 377 IPC: Summary Of Four Separate Judgments
   (https://www.livelaw.in/section-377-ipc-summary-of-judgment-in-4-points/)

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