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

Imagine each bad habit and addiction as a tax that you pay to the government or someone else. Would you not be outraged by how much you are giving away? 

Each bad habit costs you something. Most likely, you have become numb to the cost, and you do not even register the outflow of precious resources, opportunities, wealth, time and well being. That is the only reason you can continue going on living with those habits and addictions.

There are some habits and addictions in all our lives, that we either do not realize are bad or we simply refuse to acknowledge as bad habits or addictions in the first place. 

For a long time, I was not really present to the cost of smoking and drinking on my work life. I thought that I am not doing it too much, just a little. It must be harmless.

In reality, when I started tracking my smoking and drinking using a journaling app, I realized that I smoke and drink on more days than I don’t. And binge drinking and binge smoking when I am tensed or under pressure are not as uncommon as I would have liked to believe.

However, while I knew my habits had a bad long term effect, I did not quite realize the massive impact it had on my creativity, clarity of mind and ability to maintain discipline that is very necessary for success. My addictions and bad habits were really holding me back, and I did not even realize for years.

I was never quite present to the full cost of those habits, and that is the only reason I could continue for almost a decade. 

I was scared of lung cancer. I could convince myself that I would not get lung cancer, because I will quit soon. Just one more cigarette could not cause me to have lung cancer. So it went on.

But I was not even aware that smoking caused me to be more stressed and reduced the amount of energy and mental clarity I had, which is a very precious resource when you are trying to get a lot of things done every single day as I do. 

I wanted to be a high functioning person because that is what made me feel very satisfied. But smoking and drinking reduced my productivity, and I did not even realize it. If I was clear that smoking and drinking was having a clear adverse impact on my work, I think I would have given up much earlier. 

I realized the loss I suffered due to these habits only when I stopped smoking and drinking. After being off smoking and drinking for 2 months, I can see the massive difference. I did smoke and drink on two occasions in between, and both times, I regretted the same very much on the next day, because the impact was immediately obvious to me!

However, while the full impact may be less than clear, most people, including those who smoke and drink often will agree at least technically that smoking and drinking are injurious to health and are overall bad habits that compromise one’s quality of life over time.

However, there are so many other bad habits that reduce our ability to take a shot at the success that we really deserve, and we do not recognize them even when we stare at them.   

Here are the worst 7 addictions that are probably wreaking havoc in your life, without you really realizing what you are losing, because you may not recognize them as bad habits or addictions to start with:

Phone addiction 

Your phone is addictive. 

Addiction to smartphones is ubiquitous. It is leaving a large part of the population broke but busy!

Technology companies have spent billions of dollars to learn how to make phones and apps more and more addictive so that people would spend more time inside the app. As a result, smartphones today are more addictive than heroin. 

Excessive cell phone addiction is leading to car accidents, massive loss of productivity, sleep disturbances, depression and obsessive-compulsive disorder, as per studies.

I use my phone a lot. However, how much am I using my phone towards a specific, clear goal, and how much do I use it being lost to the highly addictive algorithms that manipulate our brain using dopamine secretion?

I try to keep a tab on that. I also use software that limits my daily usage of certain apps. Also, I use an app called Flippd that I used to block my phone off for 4 hours whenever I realize that I am unable to concentrate on work, or go to sleep on time because I am compulsively using my phone, or engaging in a useless twitter argument. 

You can almost take it for granted that you are addicted to your phone, you just need to understand and figure out the pattern, and change the pattern of use.

I manage to keep myself productive on my phone by installing a lot of my work apps on my phone. Starting with Google Doc and amazon kindle, I use my phone to spend more time on being productive. My phone is also my go-to place for keeping up to date with the economy, current affairs, and politics, all of which impact my work in some way or the other.

Even on social media, I make it a point to follow the kind of people whose content I can learn from, implement and benefit from.

There is also the false satisfaction we get sometimes from reading lots of emails and messages and news when in reality we are just wasting time instead of focussing what really matters. Phone addiction can take many shapes.

Curation and awareness are key.

Entertainment addiction

I have a serious entertainment addiction problem. It causes a lot of problems in my life. I frequently tend to go on NetFlix binges. I can spend a day or two just watching a series, and until I finish watching the whole series I may not be able to stop. For this reason, I am really scared to begin to watch a new series. 

I am sure that many of you have the same problem. And our phones often exacerbate our addiction to entertainment. 

I have an app that restricts me from watching NetFlix at night after certain hours when I need to sleep. It also restricts how much time I can spend in a day watching NetFlix. This has been a real boon! I happily pay for the app because it saves me hundreds of hours a year!

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It also ensures that I sleep enough at night and do not jeopardize productivity the next day as I have done on many occasions,

Still, entertainment addiction means that at night, when I go to bed, I want to watch something before I fall asleep.

I realized over time that this has been happening to me since I separated from my wife and began the process of divorce. I am busy throughout the day and rarely have a chance to feel a thing about it. But when I go to sleep, I feel lonely. And entertainment addiction is a way to fill that void. 

The awareness was a turning point. It helped me to manage my entertainment addiction and to see it really for what it was. 

It was not “hey I worked hard all day and now I need a bit of downtime”, which I bought into for a while. 

It was not “hey I am a big fan of marvel universe” so my irresponsible consumption of that content is justifiable!

I was just addicted and I wanted a distraction, and the price I was paying was too heavy.

Carbohydrate and food addiction

When I quit smoking, the immediate next response was to use food to replace that addiction. 

You may not realize, but food is very addictive. Especially carbohydrates with lots of dense calories. 

I first experienced how addictive food can be when I quit eating grains for 2 years when I was still in law school. I read about the paleo diet and its benefits and stopped eating bread, rice, rotis and so on. 

Within a week, I was feeling withdrawal syndromes. I could smell rotis being made from far away. White rice being served to others will feel extremely tempting. In malls, I could smell the pizza over everything else. When I started reading up on a hunch, I discovered that when we eat starch, such as from regular grains, it appeals to the opium receptors in our brain!

Carbohydrate is quite addictive.

Potato chips and other high carb starchy food items can be highly addictive too. A lot of fast food was designed to be addictive, with proper R&D investment into how to make cheeseburgers or icecreams addictive, just like smartphones and apps. And not only fast food, you can also be addicted to natural food too. 

Just like entertainment, food can be used to cover up any pain or distract us from discomfort. Those who face emotional trauma, also tend to eat a lot to compensate.

It is not just bad for our body, it is tremendously bad for our mind and our brain. The cost on our productivity, self-image, energy to pursue our interests and threat to well-being is no less than that of smoking or alcoholism. 

If you are addicted to food, please pay attention. You would want to address the underlying reasons for addictions.

Addiction to validation

I have seen so many friends in the thrall of validation, that people around them totally pull their strings by giving and withdrawing validation. We are all used to some form of this because our parents often controlled us in exactly the same way as kids.

Drink your milk – good boy.

If you don’t drink your milk – very bad girl!

Good girls don’t do this, good boys don’t say that.

Good boys get good marks in exams, good boys don’t get into fights, good boys listen to parents, good boys marry the girl we choose for you and whatnot. 

If you do certain things you are good, if you don’t do them, you aren’t good. Even commercial brands often use our addiction to validation to manipulate us. 

So do abusive life partners, bad bosses, manipulative colleagues, politicians, social media companies and lots of other evil people. 

How many things in your life are done with closed eyes, without thinking, without using your judgment as to whether you really want to do it? Chances are that addiction to validation is a key reason.

It is hard to go after what you really want in life, after the big wins, after the difficult challenges because there would always be people who would not approve of the same. It becomes hard to take a tough stand. It becomes hard to call a spade a spade when you are addicted to validation. It becomes hard to say no even when you need to.

My parents did not approve of me studying law, or quitting a well-paid job to start my own company. My parents did not approve of my lifestyle or belief systems. Many of my former colleagues did not approve of my management style or how ruthlessly I sometimes pursued my agenda or the tone of my marketing.

If I was a slave to approval and admiration and validation of others, I would be in a very difficult place in life. I had to learn the hard way to get beyond that.

Gaming and gambling addiction

I never engage in gaming, because I realized as a kid how addictive it is while playing games like Max Payne and Serious Sam! 

I stay miles away from gambling because I believe it messes with my head – especially the effort-reward instincts that are hardwired into the brain. Same reason why I stay away from gambling on stock market too.

I only do long term value investments. That is my mindset. I do not want to win based on luck. 

In the long term, those who stay in the game and follow a sound, good strategy always win. That is exactly the mindset I want to build, preserve and promote around me – which is of putting in hard work with discipline and let my efforts and results compound over time. Luck and chances only have minor influence over the final outcome in the long term. And that mindset is cannot co-exist with gambling habits.

It is a hard mindset to cultivate, and I am not going to ruin it with indulgence in gambling. 

Sex addiction

This one is relatively hard to talk about. I did not even know it existed until I saw some of my friends being diagnosed with the same.

I had an intern who would not be able to work, ever. He would spend all his days at his desk, planning his evening, for a salsa class or a date. He got really good at getting into the pants of the opposite sex, but it ruined his career. He attention span became very poor. He got fired from one job after another because he simply could not concentrate on work. 

He sought my help time and again, and I did my best by connecting him with coaches and training organizations that had helped me with some other issues. That’s how he discovered that he had a sex addiction. It was not easy to get over that, but today he is a hard working, diligent lawyer and I am quite proud of the way he is turning out. He will probably be reading this article too. 

Seeing that struggle also made me aware of the issues I faced. I did not have as severe addiction as the person above, but there was a time in my life when I was very weird about sex. 

I felt that I had to have a lot of sex with lots of different partners to be worthy. I developed the idea that having a lot of sexual partners is some kind of success. It became a preoccupation and really compromised my quality of life and my focus and dedication towards my work. 

It is hard to know and say how much an addiction really takes away from you until you are de-addicted. I was shocked about how much clarity of mind and will power I had, once I stopped squandering it away on sex addiction.  

Shopping addiction

Shopping is another common addiction. I have seen friends working in top law firms, earning 2-3 lakhs per month, still having a credit card debt because they shop so much! In some ways, shopping addiction perhaps can be connected to addiction to validation. I know people who would buy shoes and bags and cars they can’t really afford just to look good to others.

Luckily, that is not me. I live very much within my means, and love to see my investments rather than my bills grow. 

Addiction to abusive relationships

How can someone be addicted to an abusive relationship? But it is a real thing. It is called traumatic bonding in medical parlance. 

Every time you get into a fight with someone you love, you are likely to feel a terrible low, something like a withdrawal symptom. When this is immediately followed by making up, you feel amazing. You have good hormones flowing through your body abundantly. When this cycle of conflict and making up and feeling good repeats enough number of times, you get addicted to the same. 

Being addicted to an abusive relationship will destroy your life, as much as extreme addiction to alcohol or some other hard substance will.  

I have lived through an abusive relationship in my early twenties, for 4 years, and decided that it was not going to happen to me ever again. 

I hope you never fall prey to this addiction either because it is perhaps the worst of the lot!

Is it really possible to stay away from addictions?

It seems that a lot of good things in life lead to addiction. Food. The drinks we celebrate with. The smartphones that changed our lives in so many good ways. Entertainment. Shopping. Even sex and relationship. WTH?

Are we supposed to say no to every good thing in life and retire ourselves to a hermitage?

Not what I am suggesting or advocating. 

I believe that we need to really replace the addictions that do not serve us with addictions that help us to get where we want to get.

We need to dismantle the bad habits we have but we must create new good habits in their place so we do not fall back to the old ones. You can use your addictions creatively. 

I love a healthy celebration. So I only drink very rarely, when there is a real victory to celebrate. I have begun to earmark the victories I will celebrate with a drink. 

I love a good movie or a series, but I have milestones I got to hit before I watch something. And currently, that milestone is that I need to finish reading a book before I watch the next series or movie! I almost always read business-related books that are relevant to my work, so that works great for me. 

So when I have the urge to watch something, I have to pick up the book kept next to my bed, which may be half-read, and try to finish it before I can watch NetFlix. I could also read something from my phone’s kindle app.

I am totally addicted to working out regularly and checking how I am making progress in the mirror! Feels amazing.

I am totally addicted to writing and sharing my thoughts with you on social media and I am totally addicted to working insane hours for LawSikho.

If we are doomed to be addicted to something else or the other, let it be addictions that lead us to our goals and our life’s vision faster rather than slow us down. 

Just like you have to replace a bad habit with a good habit so that it does not come back again, you need to replace your bad addictions with some good addictions. 

Want to be addicted to learning? I run a company called Addictive Learning Technology Private Limited, and we try to make courses that can make you addicted to learning practical and useful legal lessons that would help you to become a better lawyer or have a competitive advantage as a professional. Check out LawSikho.com.

And here are the courses in which we are currently taking admission: 

The post What are the invisible bad habits and addictions that prevent you from achieving your dream? appeared first on iPleaders.

This article is written by Shambhavi Tripathi, a 3rd-year student of LL.B. in Panjab University, Chandigarh. The article explains the concept of cyber security and its importance, impact of cyber security breaches and cyber security laws. It also discusses the concept of “cyber jurisprudence” in brief. 

Introduction

Cyber law is a very vast area with many sub- disciplines emerging out of it. Few of the sub- disciplines of cyber law are artificial intelligence law, information security law and cyber-security law. Cyber law and cyber security law are often mistaken as the same, but cyber security law can be considered as a branch of cyber law. 

Cyber law can be defined as the law which governs the whole cyber space and all its elements. It protects from cyber crimes and lays down punishments for its violation. Cyber law is a common term which refers to legal jurisdiction and regulation of various aspects of internet and computer security. On the other hand, cyber security law can be defined as “the new emerging legal discipline within the cyber law umbrella, which deals with all the legal policy and regulatory issues pertaining to cyber security, its protection, preservation, maintenance and continued advancements.”

Concept of Cyber Security Breaches

A cyber security breach is an incident that results in unauthorized or illegal access to computer systems, networks, stored data, software/ hardware, services, devices by violating the security mechanisms of the systems. Cyber security breaches happen when the security policy, mechanisms or system are violated. In simple terms, a cyber security breach occurs when an individual (read cyber criminal) illegally enters a private or confidential IT perimeter. A cyber security breach is also known as a cyber security violation. A cyber security breach is one of the earliest stages of a cyber attack by a malicious intruder, such as a hacker, cracker or application. A cyber security breach can range from low-risk to highly critical depending on the nature of the incident.

In an organization or corporation, security breaches are carefully monitored, identified and processed by a software or hardware firewall. If any kind of intrusion, breach or violation is detected, this firewall issues a notification to the network or security administrator.

A cyber security breach occurs when an unauthorized party enters security measures to reach protected areas of a system to gain information or spread viruses. A cyber security breach can provide access to the valuable information to the intruder such as company accounts, intellectual property, and personal information of customers. If a cyber criminal steals such confidential information, a security breach has occurred. Such information is often sold on the dark web and can be used to commit crimes such as identity theft.

Importance of Cyber Security

A strong cyber security is extremely important for an organization to prevent its data and systems from being violated and misused. Cyber attacks cost organizations billions of pounds and can cause serious damage. Impacted organizations stand to lose sensitive data, and face fines and reputational damage. Cyber security is important because:

1. The costs of cyber security breaches are rising: It is considered as a duty of organization to have a strong cyber security mechanism to prevent data breach of the customers. With the emergence and popularity of privacy laws, liability of organizations has increased. If there is breach of security then the organizations are heavily fined. There are also non-financial costs to be considered, like reputational damage.
2. Cyber attacks are constantly developing: With the advancements in science and technology, cyber attacks also continue to grow in sophistication, with cyber attackers using well advanced technology to breach into someone’s system. This includes social engineering, malware and ransomware (used for Petya, WannaCry and NotPetya).
3. Cyber crime is a big business: Cyber crime is a big business in terms of financial gain. According to a study conducted by Bromium, in 2018, the cyber crime economy was estimated to be worth $1.5 trillion. However, money is not the only factor; attackers can also be driven by political, ethical or social motivations.
4. Cyber security is a critical, board-level issue: New regulations and reporting requirements make cyber security risk oversight a challenge. The board will continue to seek assurances from management that their cyber risk strategies will reduce the risk of attacks and limit financial and operational impacts.

Impact of Cyber Security Breach

A successful breach of cyber security can cause major damage to an organization and its business. It can affect business’ standing and consumer trust. Impact of a breach is different for each organization depending on the timing and duration, kind of breach and the industry in which it operates. For example, a data breach may have more critical consequences for the financial sector than the manufacturing sector. However, there are certain common impacts of cyber security breach. The impact of a cyber security breach can be broadly divided into five categories: 

Financial losses: Cyber crime costs small business unreasonably more than big businesses. For a large corporation, the financial impact of a breach may run into the millions, but at their scale, such monetary implications are barely affecting them. On the other hand, small businesses shell out an average of Rs. 26,85,859 to recover from a single data breach in direct expenses alone. A casual negligence on cyber security could quite easily put an organization or corporation out of business. Businesses that suffered a cyber breach will also generally incur costs associated with repairing affected systems, networks and devices. Cyber attacks often result in substantial financial loss arising from:

1. Disruption to trading (eg inability to carry out transactions online).
2. Loss of business or contract.
3. Theft of money or financial information.

Reputational damage: Cyber attacks can damage an organization’s reputation and corrode the trust the customers have for that organization. The effect of reputational damage can even impact the suppliers, or affect relationships one may have with partners, investors and other third parties vested in someone’s business. 

Loss of customer and stakeholder trust can be the most harmful impact of cyber security breach, since the majority of people would not want to do business with an organization or corporation that had been breached and attacked because of poor cyber security system, especially if it failed to protect its customers’ data. Taking a reputational hit may also affect the ability of the organization to hire the best talent, suppliers, investors and customers. This, in turn, could potentially lead to:

1. Loss of customers.

2. Loss of sales.

3. Reduction in profits.

Theft: Smaller organizations’ defenses and security systems are considerably less sophisticated and easier to penetrate, making them a softer target than bigger organizations. Cyber frauds and thefts lead to monetary losses, but stolen data can be worth more to hackers, especially when sold on the Dark Web. For example, on 31st October, 2019, it was found out that around 1.3 million debit and credit card data of Indian users have been put up for sale on the Dark Web by hackers, each card was sold for $100 and overall hackers could make $130 million out of it. Intellectual property theft is equally damaging, companies can lose years of effort and research and development investment in trade secrets or copyrighted material. Theft can be various kinds, for example:

1. Theft of corporate information.
2. Theft of financial information (eg bank details or credit/ debit card details).
3. Theft of personal information of customers.
4. Theft of money.
5. Identity theft.

Fines: As discussed above, there is the prospect of monetary penalties, fines or costs for organizations that fail to implement proper cyber security systems. Various nations are considering implementing strict regulations for breach of systems due to weak cyber security systems. One of the examples is a measure proposed by the European Parliament for a privacy breach, applicable from 25 May 2018, is a fine of 20 million euros, or 4% global annum revenues whichever is higher.

Below-the-surface costs: In addition to the financial loss, fine or costs and economic costs of response, there are several other intangible costs that can continue to affect the organization’s business.

Cyber Security Law

Cyber security law is a rather new field for many countries and still developing worldwide. Countries are being increasingly concerned about the entire issue pertaining to cyber security and the threats it imposes. Cyber security impacts not only the economy of the nations but also the sovereignty of nations by threatening the power and authority of the governments. However, there is no international framework on cyber security and countries are taking it upon themselves to come up with their own national legislations to deal with cyber security breaches.

In India also there is no particular legislation for cyber security law, but the horizontally applicable cyber security measures are provided for in the IT Act, 2000 and the Information Technology (The Indian Computer Emergency Response Team and Manner of Performing Functions and Duties) Rules 2013 (“CERT-In Rules”). For example, the CERT-In Rules require individuals and organizations affected by any kind of cyber security incidents to mandatorily report the same to the CERT-In in order to obtain assistance. 

Specific security-related compliances for certain types of information are also found in the following:

1. The Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 (“SPDI Rules”). 
2. Information Technology (Information Security Practices and Procedures for Protected System) Rules, 2018 (“Protected System Rules”). 
3. Companies (Management and Administration) Rules, 2014 (“CMA Rules”). 

Concept of Cyber Jurisprudence

Cyber law is a very new field and has had very little structured study as compared to other, older, branches of the law. To define cyber jurisprudence, we must define jurisprudence first. Black’s Law Dictionary gives us two different definitions of jurisprudence:

First is, “a method of legal study that concentrates on the logical structure of law, the meanings and uses of its concepts, and the formal terms and modes of its operation.” and the other, “a system, body or division of law.” In simple terms, it can be said that jurisprudence is the science and philosophy or theory of the law.

Now coming to cyber jurisprudence, it is the legal study that concentrates on the logical structure, the meanings and uses of its concepts, and the formal terms and modes of operation of cyber law. Legal issues relating to the electronic communication, computer systems and network in this world of internet is demanding a new kind of jurisprudence, cyber jurisprudence with a virtual approach. Cyber jurisprudence describes the principles of legal issues of cyber law, which exclusively regulates the cyber space and internet and deals with the complex idea of cyber jurisdiction. 

Conclusion

There is an urgent need to establish a strong international cyber security regime which would fulfill all the needs of various concerns and issues. A common approach to cyber security can be developed, implemented and encouraged by applying the principles of governance, management and inclusiveness. This would encourage a system of cyber security which would ultimately lead to the development of a natural instinct for what is safe and what is risky. Need for the development of an international, multi-stakeholder regime that would include industry, governmental, international, and non- governmental organizations focused on cyber security in space. Apart from this, the emergence of cyber jurisprudence around the world has promoted the growth of new dimensions in law and cyber law. Development of cyber jurisprudence is opening new areas for better cyber legislations. 

References

• Security Breach; Technopedia; Date of Access: 11.01.2019 <https://www.techopedia.com/definition/29060/security-breach>
• Cyber security for business- Impact of cyber attack on your business; NIBusinessInfo; Date of Access: 11.01.2019 < https://www.nibusinessinfo.co.uk/content/impact-cyber-attack-your-business>
• What is Cyber Security?; itgovernance; Date of Access: 11.01.2019< https://www.itgovernance.co.uk/what-is-cybersecurity>

• What is a security breach? By Steve Symanovich; Norton; Date of Access: 11.01.2019< https://us.norton.com/internetsecurity-privacy-security-breach.html> 

• The Consequences of a Cyber Security Breach; Sunguard; Date of Access: 11.01.2019<https://www.sungardas.com/en/about/resources/articles/the-consequences-of-a-cyber-security-breach/>

• Jeff Kosseff: Defining Cybersecurity Law; 103 Iowa L. Rev. 985 (2018)<https://ilr.law.uiowa.edu/print/volume-103-issue-3/defining-cybersecurity-law/>
• India: Cybersecurity 2020; ICLG; Dated: 22.10.2019; Date of Access: 11.01.2019< https://iclg.com/practice-areas/cybersecurity-laws-and-regulations/india>

• Stephenson, P.R.: Defining a Cyber Jurisprudence (2017); Annual ADFSL Conference on Digital Forensics, Security and Law; 8; https://commons.erau.edu/adfsl/2017/papers/8
• Shahid Jamal Tubrazy: Cyber Jurisprudence- An Emerging Concept; Academia; Date of Access:11.01.201<https://www.academia.edu/12889941/Cyber_Jurisprudence_an_Emerging_Concept>

• Cyber Security Law, Its Regulation And Relevance For Outer Space by Pavan Duggal; Date of Access: 11.01.2019  <http://www.unoosa.org/documents/pdf/hlf/HLF2017/presentations/Day2/Session_7b/Presentation5.pdf>

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 skill.

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

While the profile and attraction of in-house legal roles have drastically increased, understanding of what it takes to be a successful in-house counsel and how it is different from a role in a law firm or litigator is not very well understood by a vast majority of lawyers who want in-house jobs. 

I spoke to 5 CEOs who have hired General Counsels or set up a legal team to learn about their experiences. What they said was markedly different than usually what the in-house counsels have to say.

Since it is often a CEO or CFO who decides who to hire as a General Counsel or Legal Head, I think this advice would be pretty important!

Here is what they said they look for:

We need you to anticipate problems rather than react

Some major amendments to consumer law got passed back in August. As an in-house counsel, did you follow the law from the inception of the bill to the point when it got notified? Did you track the debates and conversations around it? Have you considered how the new product liability clauses may impact your company?

Have you considered if the new law will in any way add new burdens or make things easy for your employer?

If not, then you are not doing enough to anticipate problems and handle them ahead of time. 

If we are expanding into new territory, in terms of business or a location, would my lawyer wait for me to ask him to figure out various licensing requirements and regulations that would apply to us or is she going to be ready with it when we need it? Would I get a notice from a regulator because she could not foresee an unusual regulatory position? Is my legal team already in touch with other lawyers in the jurisdiction figuring out what may go wrong and addressing those concerns ahead of time?

We need lawyers who fix problems after they arise, but we desperately want legal strategists who can foresee what’s going to happen, what we will need and give us heads-up, plus levels the path before us.

The problem is that this is not something that law firm lawyers or litigators are used to doing. There are some exceptional law firm partners who are valued by clients for their oracle-like ability to foretell troubles ahead and muster possible solutions along the way. However, for in-house counsels, there are perhaps no bigger skill than what we are talking about here. 

It is difficult to find lawyers with this ability, but that is what makes a few in-house counsels indispensable. 

You need to help us to make better strategy and work well with sales, marketing and product development teams

Are you the lawyer who tells us what we can’t do because the law says we can’t? Or are you the kind of lawyer who tells us what the law prohibits and therefore find us an alternative way to achieve what we have to achieve?

The in-house counsel cannot just be a good lawyer. He also has to be an astute business executive who is a trusted business advisor to the sales head, the strategy team and the marketing brain of the company. You also need to work with the operations team and any other team that may exist when the need arises.

However, you cannot be the naysayer who just tells us the dry letter of the law. You need to be the enabler, the legal magician who comes up with clever ways to avoid illegality and still do the things we need to do.

Let me give you an example. Back in the day, foreign investment in online multi-brand retail was illegal. Some clever lawyers came up with a solution. 

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How about we separate the retail company from the delivery business, the warehousing, and the infrastructure facility? Suddenly, the retail part was just a thinly capitalized front while there were 3 other services companies serving it! And of course, those companies raised tons of foreign investment, paving way for companies like Flipkart, Snapdeal, Pepperfry, Amazon India and Jabong.  

If you are not staying a step ahead of regulators and government and competitors, we have the wrong lawyer in our team.

Another side of this is that you need to understand and speak yourself in corporate-speak / business jargon that is common in your industry. If you are working in SAAS and don’t know what is LTV or what is churn in SaaS context then it may be hard to collaborate with others in the business. 

If you do not know how Kanban or Scrum works, it may be hard for you to even comprehend what is going on in the product development cycle, which may lead you to make some costly mistakes in terms of protecting the IP of the company. 

Learning the speak the language of your colleagues is a part of your job as in-house counsel. 

You need to hire a team, build systems and structure the legal and compliance function

If you are the legal head or general counsel in my business, I would want you to do your own job well as a lawyer and strategist. However, that is not all! 

I want you to build a combination of support systems, monitoring mechanisms like compliance dashboards and MIS for existing litigations. 

I would also expect you to be able to build a team in place to leverage your expertise and structure it for a high level of efficiency.

Most lawyers who find themselves in the legal head or general counsel positions often get there due to their legal talent and proven ability to deliver results, which may not include any ability to manage or build a team. 

You also need to manage a large number of outside lawyers or litigations going on in different parts of the country or even world. It is no mean task! You need to have some serious management chops to pull off those things. 

If your goal is to become a general counsel, please understand that the role is not merely of a lawyer, but that of a vertical leader, who needs to bring significant management and leadership skills on board. Please note that these skills are not available in the form of an MBA degree in a business school. You need to learn how to manage and build a team right from the beginning, or else you may not make it as a general counsel despite having all the relevant legal skills.

We want to save on legal costs, you need to make things efficient

Many growing businesses hire their first lawyer to save the regular outflow of money to outside lawyers and law firms. And it is often a good strategy. 

For businesses, legal is usually a cost. If your legal team is saving a lot of money by handling things in-house, that is a great value add. No company wants to hire in-house counsels to be just conduits between their business function and outside lawyers anymore, though that may have been the case a decade back. 

You need to build the capacity to do a lot of work inhouse and outsource only in special cases. When you outsource, it is your fiduciary duty to the company to not only get the desired results but also ensure that you are getting a reasonable rate and saving money for the business. 

This also means you need to figure out new technology and workflow that reduce redundancy and promote efficiency. If you have a tab on the latest legal innovation that reduces the time your lawyers take to research or close a case, that is awesome. If you can introduce better project management software that ensures better collaboration between you and the outside lawyers, that is a competitive advantage for your company.

You need to tell us how you can add value because we don’t always know

We are business people. We are not familiar with the worlds of law, regulations, and policymaking. You are the expert we have trusted to guide us with respect to these things. How can you add maximum value to our business? How can we get the best out of you? How should we collaborate with you? What can we expect from you and what should we not expect?

Whatever we know about that, is what the other lawyers we worked with taught us. They may have been wrong, but you need to tell us and show us. You need to lead the way. 

The best general counsels always do.

Our Master Access program for in-house counsels is open right now. It is really fantastic. Try it out risk-free. Just ask us for the corporate brochure.

Here are some courses we strongly recommend for those who want to become in-house counsels, as we are currently taking admissions in them, but only till 14th:

DIPLOMA

Diploma in Entrepreneurship Administration and Business Laws

Diploma in Companies Act, Corporate Governance and SEBI Regulations

Diploma in Intellectual Property, Media and Entertainment Laws

Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution

Diploma in Cyber Law, Fintech Regulations and Technology Contracts

EXECUTIVE CERTIFICATE COURSES

Certificate Course in Media and Entertainment Law: Contracts, Licensing and Regulations

Certificate Course in Capital Markets, Securities Laws, Insider Trading and SEBI Litigation

Certificate Course in Advanced Corporate Taxation

Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting

Certificate Course in National Company Law Tribunal (NCLT) Litigation

Certificate Course in Prevention of Sexual Harassment at the Workplace

Certificate Course in Arbitration: Strategy, Procedure and Drafting

Certificate Course in Trademark Licensing, Prosecution and Litigation

Certificate Course in Labour, Employment and Industrial Laws for HR Managers

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Introduction

Can you imagine a world where places do not have names? Undoubtedly, It would stir up confusion among the people to identify the places and distinguish one place from another. Hence, places are named to create their unique identities, which makes it easier for people to locate them and differentiate them from other places as well.

The name of a place can be rooted in its historical significance, geographical location, cultural and religious beliefs, etc. In the United States of America, the places are either named after the people who found them or the political leaders who made significant contributions to the development of that place, but in the United Kingdoms, we observe that most of the places are named after the rivers upon which they are built. 

Unlike the USA and the UK, the name of the places in India, being a vast and diverse country, are rooted in either its historical importance, or its geographical location, or its mention in the holy scriptures. In our country, the places are named in different languages as well. That is why our country is known for its diverse culture and heritage.

Our country was invaded by the foreign rulers who not only looted the resources of our country but also tried to ravage our rich heritage. They demolished the sites depicting our vibrant culture and traditions, and also renamed those places to erase them from history.  Following the end of the British colonial era, the lawmakers of India initiated to restore the names of the cities and states which were either modified by the Britishers or the invaders who ruled us before them. The prime reason behind renaming the cities and towns was to preserve our rich history and heritage and also to get rid of the unpleasant memories of the colonial rule. Renaming of the cities and towns was done to pay tribute to our freedom fighters who sacrificed their lives to make India free, and to mark the end of colonial rule. 

Principles on which renaming is allowed

If the name of the city or state has a historical connection, then it is advisable not to rename it. It is our responsibility to preserve the historical significance of a place. 

There must be some specific reasons to change the name of a state or city otherwise, it’s better not to change the name of a place which people have got used to.

A city or state can not be renamed on the grounds of local patriotism or for linguistic reasons.  Renaming must not be done to mollify the sentiments of the local people.

It should be ensured that the new name of a city or state should not match with the existing names of the places, which are situated either in the same state or city or in neighbouring places as it may confuse the natives.

List of countries that have changed names

Swaziland

Swaziland, a minuscule country in Africa, was renamed as the Kingdom of eSwatini by its King on the eve of his 50th birthday. The term eSwatini means ‘The People of Swatini’. It was renamed because people outside of Africa often confused Swaziland with Switzerland, and the second reason was to get rid of the country’s colonial past.

Czech Republic 

In 1993, Czechoslovakia bifurcated into two different countries – Slovakia and the Czech Republic. The latter country wants to shorten its name as Czechia so that companies and sports teams can use it on their products, and at the same time, the country will also retain its full name. 

Republic of Macedonia 

The Republic of Macedonia was renamed as the Republic of North Macedonia to resolve the name dispute going on between Greece and Macedonia. Since there is a place in Greece called Macedonia, Greece refused to recognise the name of Macedonia. Greece, being a member of NATO and the European Union, blocked all the attempts of Macedonia to become a member of these two organisations. That’s why the top leadership of Macedonia renamed the country’s name to get an entry in these two organisations.

Ceylon

In 1505, Portuguese arrived in Srilanka and named it as Ceilao, which was later renamed as Ceylon by the Britishers so that they could easily pronounce it. In 1948, it got independence as the Dominion of Ceylon. In 1972, the original name of the country was changed to Srilanka, which, in Sanskrit, means resplendent island.

Procedure for changing the name of a state

Either the Central Government or the State Government can initiate to change the name of a state. If the State Government proposes to change the name, the resolution must be passed by the State legislature and the Parliament. When the process is initiated by the centre, a bill regarding the renaming of the state is sent to the respective state legislature to express its opinion within the stipulated  time. After the expiry of the allotted time, the bill is introduced in the parliament at the behest of the President. The detailed process of renaming a state with or without the proposal of the state government is mentioned below.

With the proposal of the State Government

1. The state assembly must pass the resolution regarding the renaming of the state.
2. After getting approval from the state assembly, the resolution is sent to the Central Government. (Union Home Ministry)
3. The Central Government then formulates a bill and sends it to the state legislature to express its opinion within a stipulated time.
4. After the allotted time gets expired, the bill, on the recommendation of the president, is introduced in the parliament.
5. The Members of the Parliament deliberated upon the bill before the voting takes place. If the bill gets passed by a majority, it is further sent to the President for his assent.
6. Once, the President gives his assent to the bill, it becomes a law, which means the state has been renamed.

Without the proposal of the State Government

1. Article 3 of our constitution empowers the Central Government to rename a state. A bill can be formulated by the Government to change the name of a state even if the state does not propose the same.
2. After the formulation of the bill, the President sends it to the state legislature, seeking its opinion about the proposed bill within a stipulated time. However, the opinion of the state does not have any impact on the bill.
3. The bill, on the recommendation of the President,  is introduced in the Parliament and deliberated upon. 
4. If the bill gets the green signal of the Parliament, it is further sent to the President for his assent.
5. As soon as the President gives his assent to the bill, it becomes a law.

List of renamed states in India

Madhya Bharat to Madhya Pradesh

Initially, Madhya Bharat consisted of 25 princely states, which were later merged with Vindhya Pradesh and Bhopal state. On November 1, 1956, it was renamed as Madhya Pradesh and Bhopal was declared as the capital city.

East Punjab to Punjab 

In 1947, under the supervision of the Radcliffe Commission, East Punjab was bifurcated. Muslim dominated areas of the province became the part of Pakistan, while the areas mostly inhabited by the Hindus and Sikhs continued to be a part of India. In 1950, our constitution came into force, the province was renamed as Punjab.

United Province to Uttar Pradesh 

After India got independence, the princely states of Rampur, Banaras and Tehri Garhwal were merged with the United Province, and on January 25, 1950, the whole unit was renamed as Uttar Pradesh.

Hyderabad to Andhra Pradesh 

Following the state reorganisation bill, Hyderabad merged with Andhra state, and it was renamed as Andhra Pradesh in the year 1956. From 1948 to 1956, Hyderabad existed as a state.

Travancore-Cochin to Kerala 

Travancore-Cochin, originally known as the United State of Travancore and Cochin, merged with the Malabar District of Madras State on November 1, 1956. Travancore-Cochin, along with Malabar District formed a new state and came to be known as Kerala. 

Madras to Tamil Nadu 

After India got independence, the Madras Presidency was known as Madras Province, consisting of present-day Tamil Nadu. In 1969, Annadurai’s Government renamed Madras Province as Tamil Nadu.

Uttaranchal to Uttarakhand 

Uttarakhand has been derived from Sanskrit, which means Northern Land. In the Puranas and the holy scriptures of Hindus, the region is named as Uttarakhand. However, the Government renamed the region as Uttaranchal after it got separated from Uttar Pradesh, which was later changed in 2006 following the demands of the people. 

Orissa to Odisha 

The name of Orissa modified to Odisha by the passage of the Odisha (Alteration of Name) Bill, 2010 and the 113th Constitutional Amendment Bill, 2010. The name was modified because the people of Odisha used to pronounce Odisha, not Orissa. The term ‘Orissa’ was coined by the Britishers so that they could easily pronounce the term in English.

Procedure for changing the name of a city

Unlike the renaming of a state, the power of changing the name of city vests with the State Legislature. The procedure of doing the same varies from state to state, but each state has to obey the following guidelines.

1. In the State Assembly, an MLA may introduce the resolution, requesting to change the name of a city or street.
2. After the introduction of the bill, it is debated upon and all the consequences of renaming the city are discussed at length.
3. After the discussions are made, the Assembly votes either in favour or against the bill. If the majority of the Assembly votes in favour of the bill, it shall be declared passed. The bill shall lapse if the majority of the Assembly votes against it.

Few examples of renamed cities in India

Baroda to Vadodara 

The early English travellers and merchants used to mention the city as “Brodera”, which resulted in naming the city as Baroda. In 1974, Baroda, the third-largest city in Gujarat after Ahmedabad and Surat, was renamed as Vadodara. The new name has been derived from the terms, ‘Vatpatrak’ or the leaf of a banyan tree and ‘Vatodar’ or the heart of a banyan tree. Due to the abundance of banyan trees on the banks of the Vishwamitri River, the name of the city had been changed  to preserve its geographical identity.

Calcutta to Kolkata 

Even before Calcutta was renamed as Kolkata, the Bengali people used to enunciate Kolkata instead of Calcutta while talking in their mother tongue. In 2001, the city got its new name as Kolkata, which is the shorter version of the term ‘Kolikata’, one of the three main villages that existed during the colonial rule of Britishers. Furthermore, Kolikata has been originated from Kilkila, which means flat land. 

Trivandrum to Thiruvananthapuram 

In 1991, the capital city of Kerala was renamed after the chief deity, Lord Anantha at Sri Padmanabhaswamy temple. In Malayalam, the term can be written as Thiru-Anantha-Puram, the city of Lord Anantha. Hence, we can say that the city was renamed to uphold the religious and cultural beliefs of the people.

Bangalore to Bengaluru 

On November 1, 2014, the Government of India green signalled to rename Bangalore as Bengaluru. The city was renamed on the basis of its historical significance. At Parvati Nageshwar temple in Begur, there is an epitaph mentioning about Bengaluru war that was fought in 890 AD, which further justifies the claim that the city was a part of Ganga Dynasty until 1024 C.E. At that time the city was called as ‘Bengaval-Ooru’, the city of old guards. 

Allahabad to Prayagraj 

In spite of saying that  Allahabad was renamed, it would be better to say that the original name of the city was restored on October 16, 2018. It was earlier named as Prayaga before Akbar renamed it as Illahabad, and his grandson started calling it Allahabad. In Hindu mythology, the term Prayaga means the land of confluence or the place where two or more rivers meet. The city is located at “Triveni Sangam”, where three rivers – Ganga, Yamuna and Saraswati meet. That’s why the city was renamed as Prayagaraj. 

Effects of renaming on culture or heritage of a city or state

Have you ever wondered why our initial names are always followed by the surnames of our forefathers? It symbolises the transfer of our personal culture and heritage from our ancestors. In the same manner, the name of a place not only helps us to identify it but also helps us to know about the people of that place, their cultures and heritages, and the geographical and historical importance of that area. In other words, it can be said that the name of a place reflects the cultures and heritages of the people living there. If a place is renamed, and the new name does not have any connection with that place, then it eventually erodes the culture and heritage  of that place. Hence, it is the high time when we need to preserve the name of the places so that our younger generations get to know about the culture and heritage of the place, where they are born. 

Conclusion

To date, no studies have been done to understand how renaming a place impacts the lives of people, and the most interesting fact is that we still say IIT Bombay and IIM Bangalore even after both the cities have been renamed as Mumbai and Bangalore respectively. We still use the term “Bollywood”  instead of “Mollywood” and the world transacts with “Bombay Stock Exchange” instead of “Mumbai Stock Exchange”. Even though Madras has been renamed as Chennai, Madras High Court has retained its name. There are myriad examples that can be cited, but the usage of colonial names raises a pertinent question – “Does renaming a place  help people to shed their memories of the colonial era?” There are several questions that are still unanswered such as “Does renaming of a place make people feel prouder of their localities than before? “Does it help people to uphold their cultural beliefs?” “and “Have the changes bettered their standard of living?”. Before renaming a place, these questions should be addressed to understand whether changing the name of a place is beneficial for the people. 

Unarguably, there are costs involved whenever the name of a place changes. Highway traffic signs, railway signage, systems and paperwork and address of every single institution have to be refurbished. The major drawback of renaming a place is the confusion it creates among the outsiders. In an era of globalisation, it is extremely risky to change the name of a place that has been globally recognised. 

The Government should avoid changing the names of places unless there is a specific reason to do so. Lastly, I would say renaming should only be done if it has a positive impact on the lives of people.

References

iPleaders blog

https://blog.ipleaders.in/renaming-state-city/

Scoopwhoop

https://www.scoopwhoop.com/news/whats-in-a-name/

The Economic Times

https://economictimes.indiatimes.com/magazines/panache/altered-atlas-macedonia-and-other-countries-that-changed-their-names/the-world-is-changing/slideshow/64658923.cms

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 skill.

The post Provisions on Renaming of a City or State appeared first on iPleaders.

This article has been written by Aditi Lakhanpal, B.com LL.B (9th Semester), Rayat Bahra University, Mohali.

Abstract

In 2014 India turns out to be the first state in the world to mandate corporations to employ a portion of their returns on corporate social responsibility. Nevertheless, prior before the Companies Act 2013, traditional philosophies in contributions and good karma, have constantly been a deep-seated fragment of India’s corporate ethos. The model of CSR has progressed over an inordinate length of time. Currently, it is reflected as a dynamic share of the tactical business which creates corporate entities socially accountable populaces, perceptibly contributing to the social prosperity. Socially accountable corporations do not restrict themselves to using resources to engross in undertakings that increase merely their earnings rather they use CSR to assimilate economic, legal, ethical and philanthropic objectives with the company’s operations and growth. Recognition of this imperative model would support further the cause and buoyantly prompt corporations to embark on CSR proactively. This essay marks a modest endeavor to critically scrutinize the model of corporate responsibility and put forward a number of sustainable approaches for the development of CSR schemes in companies as well as vouch for potential CSR initiatives that will expectantly be of interest to practitioners in the events of business.

Keywords: Legal Implications, Branding; Social Image

Exordium

The first day of April 2014 saw the dawn of a new era when India introduced the policy of CSR, Corporate Social Responsibility in its Companies Act of 2013 (hereinafter referred to as the ‘Act’). It became the first country to make it mandatory and inculcate it as an integral part of the statute. Section 135 (8) of the Act, engulfs within its ambit the following companies which are directed to spend an amount equal to 2% of the company’s average net profit before tax of the preceding three years on CSR. These are-

“Companies with a net profit before tax of at least Rs 5 crore, or a net worth of at least Rs 500 crore, or a turnover of at least Rs 1,000 crore.”

The act requires the companies to

• constitute a CSR committee (different composition for listed & unlisted companies)
• chalk out its progress in this arena in its Annual Reports.

However, the companies are forbidden to invest in the areas where they function.

Schedule 7 provides a list of activities which can be undertaken by the companies under this initiative-

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

Historical Development

The concept of corporate conscience and corporate responsibility are a newly evolved nomenclature of the ethical and moral practices which have been followed by some companies voluntarily. In the early times, it was famous as social philanthropy especially in the east and the west. It incorporated schemes for the welfare of the employees and staff of the companies ranging from women’s welfare and medical care etc. however; it bears its evolution to the United States of America where its language and practice first emerged. This is for the plain reason that the labour and capital market in the US was fairly unregulated coupled with minimal state welfare policies. Therefore, social welfare schemes of education, healthcare, hygiene, etc had been the centrifugal areas of investment by companies.

In the other parts of the globe like Europe and the Far East there had been a policy of social welfare through government intervention and welfare schemes. In European nations, there has been a recent rise in CSR activities by the MNCs because of the same notion. This pattern of corporate responsibility differs on a great pedestal when it comes to a comparison between the US and Europe.

Japan, South Korea, and Taiwan are more or less similarly situated in terms of institutional effort towards corporate responsibility.  These are based upon long term employment and relations rather than changing market scenarios. Japanese ‘Kieretsu’ and Korean ‘Chaebol’ have a rich heritage of employee benefits, social services, women health largely as a response to the regulatory and institutional environment of business.

The United Kingdom, on the other end best exemplifies the role of giant corporations taking up responsibility for regeneration of local community, funding education and enhancing transparency and public accountability.  This was a result of the initiative by Prime Minister David Cameron christened as Big Society in the early 2010s.

Furthermore, the wave of globalization universalized the notion of corporate conscience.  The countries of Australia and South Asia were the most benefitted by it. The Chinese counterpart experienced a boom in CSR since the new millennium, whereby the State Owned Enterprises started rolling out a wave of CSR reports in 2006.

Coming back home, the previous legislation also contained provisions with respect to CSR however, they were only voluntary in nature until now.

Pyramid of corporate social responsibility

The crucial drive of each business is to make profits and embellish their setups from corner to corner. The initiative to attain the same often leads to aggressive industrial actions, technical improvements, and practices, all of which come at the price tag for society and the welfare of its elements in overall. CSR is a broad concept that helps corporates and business envision their role and power in creating an impact in society by stepping into capacities that work for the larger good of society.

Economic Accountability

India is a state with a tremendous disparity of income. On the one hand, we have very rich people and the tragic poverty on the other hand. We have to be sensitive to the datum that this gap cannot endure widening while there are largely disconnected populaces who are looking at the iniquities’ of the environment. For companies, therefore, there has to be sensitivity to doing something in the community hemmed in and making an all-inclusive effort to raise the quality of life so that society could look at the company in a more optimistic sense. One such initiative which can be taken up by companies to do away with income disparity concern is that they can drive deep within the act of responsibility by employing weaker fragments of society after providing them with sufficient training. By means of their business acumen, companies can stabilize the employment and inclusion of individuals from varied experiences coming together and contributing to the larger message as well as the goal line of the brand.

Legal Accountability

Consumers are more likely to purchase products and utilize services from companies they trust. Apart from building that trust is abiding by the laws that regulate the business by means of paying the mandatory taxes, adhering to labour laws besides permitting inspections. It is clear that business has a social responsibility to obey the law. Relationships with a workforce, clienteles, merchants, creditors, etc. craft a contractual onus. Legal obligations furthermore exist to evade negligence, fraud as well as other liabilities under tort edict. The principal interrogation of CSR is the magnitude to which business organization and their administrators have ethical responsibilities that go beyond manufacturing desired goods and services in the interior of the law. 

Ethical Accountability

CSR signifies the ethical expectations that society has for business. Being ethical means going above and beyond the legal requirements and meeting the beliefs of society. One such initiative which can be adopted by companies in the course of action against sexual harassment in the workplace. Sexual harassment cases are often fueled by a toxic culture. Ethically better upshots will be realized if companies are clear as crystal as to why they are engaging in CSR. If companies are apparent from the beginning vis-à-vis why there are proposing to confer certain profits upon the community for instance if a company want to have a noble liaison with the community and know they need a societal permit to operate then cynicism will be less in the cards. 

Philanthropic Accountability

CSR can extend its arms by evolving and founding a brand that identifies its responsibility to give back to society in a certain approach. One such initiative is assisting the edification of children by taking on schools, funding undertakings and pool resources for events. Edification as an instrument of empowerment not only benefits in dealing with the perpetual problem of poverty but also paves the way for the future of the state by shaping their lives. Education symbolizes the stepping stone to advance the quality of life, exclusively for the underprivileged and the vulnerable. The dogma behind the CSR is to bring makeover in education that will promote constructive transformation in the lives of the children by means of constant enhancement of knowledge and empowerment. When a company’s take part in such endeavors’ it helps in establishing a notion that addresses the matter of egalitarianism and education as well as craft a platform for people to step up and add to the greater good by being a helping hand. CSR is also appreciated as gender equality tool wherein companies focus on bringing women “up to speed” through training, employment, quotas, and scholarships the Significant number of companies have some portion of their CSR portfolio keen to financial savvy for womenfolk around the world. These investments lay emphasis on issues ranging from household investments to entrepreneurial corporate aptitudes to salary negotiations. In addition to aforementioned another imperative facet that every brand must make surefire is that give consumer privileges an equivalent share of significance, as a brand that puts itself in the shoes of its customers is the one that thinks through customer trustworthiness, and guarantees the protection of their trust by fulfilling its social responsibility. This is for the reason that customers are the fundamental part of the companies’ actions and operations, as they are the direct cause for which the organization exists.

Limitations Of The Present Law

1. Companies spending more than two percent before the present law have now started investing less.
2. The schedule shows a very rosy picture and has a myopic view of the problems which the society is facing. Various problems of the society like increasing crime rate, Sexual harassment of women at workplace, etc find no mention in the Schedule.
3. It is only limited to companies registered under the Companies Act of 2013. Partnerships, LLPs and SMEs should also be included.
4. No tax evasion or any perks for fulfilling the criterion.
5. Two percent is not sufficient.
6. Lack of any punitive measures in case of non-fulfilment.
7. Negligible role of the State Governments, NGOs, Local Agencies and youth.
8. No provision for the welfare of Scheduled Tribes, Rehabilitation of the displaced and Prevention of crimes.
9. Investment on Psychological health of the community is not a part of CSR activities.

CSR: a clairvoyance outlook

1. There should be flexible and meager but effective provisions for CSR amongst Partnerships, LLPs and SMEs which should be proportionate with the turnover of a financial year.
2. Availability of Governmental platforms (online/offline apart from those already mentioned) where the companies can invest directly without any extra efforts. Sometimes, the companies face over the edge situations where the balance needs to be achieved. It is in those circumstances that such platforms, which are exclusively built for the purposes of creation of a fund in such circumstances, shall always come in handy.
3. Just like Special Economic Zones, the companies should be given incentives to invest in a particular state/zone/area for e.g. Female mutilation in Haryana.
4. Role of State Governments: the state governments must not become mute spectators. They have a crucial role in determining each state’s priority areas as to where it lags. For e.g. Punjab suffers from the menace of drugs and intoxicating substances, while its neighboring state of Haryana struggles with low education levels and agricultural problems. The role of state governments must not be undermined and they should be directed to amend the list of their priority areas before the start of each financial year, which should be notified to the ROC so that each company/organization can plan way ahead in advance.
5. Reduce taxation if they invest in your priority sectors: the role of State governments does not end after the identification of priority sectors. In order to attract companies/organizations, they should introduce lower tax levels or rebates.
6. Role of youth: the youth should be encouraged to spread awareness about the benefits of CSR and they should also be allowed to volunteer for companies/organizations working in their locality. They should be encouraged to see it as an opportunity for growth and as volunteering work. Such an experience should be given academic weight age as well while applying for higher studies.
7. Role of attitude. CSR should not be considered charity: Attitude is the key to success. The companies/organizations see as a liability and hence back out from their social obligations. However, they should be made aware of its benefits not only to the companies but also to society at large.

Moreover, this concept can only flourish if the harbingers of the same carry an air of pride and satisfaction. The companies/organizations need to understand that what they are doing is not charity.

A very recent example of active corporate responsibility has been displayed by MI wherein it has undertaken to fund the education of children of martyrs Pulwama attacks. The same suit has been followed by Reliance group as well.

Openness to innovative ideas and a passion to change the face of the society is what is really required.

8. Not only companies but also tier 1 educational institutions should be included. CSR, essentially incorporated for the engagement of companies in social tasks, should also bring under its wings those big fat private educational institutes run by giant businesses (For e.g. Jindal, Birla Group) which charge an enormous amount on the pretext of education should also be included.
9. Entrepreneurial Awards need to be floated and given recognition in order to induce companies to follow the ideology of CSR. Such companies can receive an advantage over other competitors while working with/for the government.
10. Go local: going local is the only spell which needs to be cast in order to make CSR a success. Wherein, instead of aiming a large population, the Companies/organizations focus on the most reachable area they can cover and visit regularly. Regular visits and daily updates about the same shall eradicate major problems step by step. A policy of one step at a time should be followed.
11. CSR initiatives should be implemented where the actual business offices are located, and not where the companies have their registered offices. This is for the simple reason that the employees know all the problems and they shall be able to help out in the best way possible.
12. Encourage activities which enhance the goodwill of the organization and also help them establish good public relations.
13. Geographic diversity calls for diverse and unique measures. Some special areas like Northeastern states and Upper areas of Jammu and Kashmir mostly get neglected. Therefore, these call for special measures from the State Governments to induce the companies to invest there. For eg. Sponsoring schools and colleges in the interior areas of Kashmir shall not only educate the youth but shall also result in the reduction of terrorist activities.
14. Flexibility is the key: The companies/organizations should be given the freedom to work beyond the areas specified in the schedule after approval from a Competent Authority. This is because not everything can be jotted down in black and white. To ensure the growth of the economy, it is important to take up a flexible approach when it comes to combating social roadblocks. Eradication of offenses such as rapes, murders, acid attacks, etc should also be enlisted.
15. Role of local level government bodies like Panchayat at the grass root level should be ensured for companies which wish to work in sensitive areas.
16. Collaboration with NCC/NSS volunteers at the school/college level by the state government or by the Companies/organizations shall benefit them a lot.
17. CSR Policies should be drafted by the State/Central Government before the start of each financial year which can be abided by the companies/organizations and these must be structured in such a way that the companies/organizations do not feel it as a burden. However, such policies must be drafted by experts in the respective fields.
18. The role of technology should also not be underestimated during awareness and data collection campaigns.

Conclusion

In a nutshell, this concept of Corporate Social Responsibility if used diligently is a Brahmastra for the Indian economy provided the stakeholders to understand its importance and strive for innovative ideas to achieve the best.

This technique has harbored the sister concern of FDI, i.e. IDI which stands for Indian Direct Investment. Those huge loans from the IMF and World Bank can be reduced if this technique is used as a weapon of change and not as a tool for mere ornamentation.

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 skill.

The post CSR: A Mere Formality or Brahmastra? appeared first on iPleaders.

This article is written by Devang Singh, pursuing a Certificate Course in Insolvency and Bankruptcy Code from LawSikho.com. Here he discusses “Analysis and Comparison of Option of Voluntary Liquidation under IBC and it’s Parallel under Companies Act”.

Introduction

With the advent of Insolvency and Bankruptcy Code(IBC), 2016, a uniform, comprehensive Code was introduced which encompassed all companies, partnerships, and individuals (other than financial firms). The plan was to introduce the act back in 1992 but it was not until 2016 that this plan was officially added to complement Companies Act 2013. Its  primary goal is to consolidate the Insolvency resolution process into a fast track for all companies, partnerships and individuals (other than financial firms).

Now, the IBC not only enables the insolvency proceedings of the Corporate Debtor turning Insolvent but also contains provisions for Companies who want to surrender their business and give up their right to carry on the same. 

The Central Government vide its notification introduced in 2017 notified Section 59 of Insolvency and Bankruptcy Code.

Prior to the above Notification which notified the Insolvency and Bankruptcy Board of India (Voluntary Liquidation Process) Regulation 2017 (“The Regulation”) and introduced the concept of Voluntary Liquidation process which was governed by the Companies Act 1956, as the provisions under Companies Act 2013 were not notified. Thereby meaning that that voluntary liquidation or winding up of company continued to be governed by the 1956 Act before the Government introduced the notification on Section 59 of the IBC in 2017.

Voluntary Liquidation

The Insolvency and Bankruptcy Board of India (IBBI) has notified Section 59 which deals with Voluntary Liquidation, meanwhile the Voluntary Liquidation process in use before IBC, was Companies Act 1956 and Companies Act 2013. Voluntary Liquidation is when a company self imposes upon itself to wind up and dissolve itself after approval of its shareholders. It generally happens when company turns insolvent and is unable to pay off its liabilities.

Now, the government vide its Notification has repealed the provision of Voluntary Liquidation under Companies Act 1956 and Companies Act 2013.

The Companies Act 1956 had 38 Sections and Companies Act 2013 had 20 Sections which dealt with Voluntary Liquidation, but the IBC 2016, vide Chapter V of Part II consists only of one Section i.e Section 59, which deals with voluntary liquidation.

Another key difference between Companies Act and IBC 2016 is that under Companies Act 1956 the process of Voluntary Liquidation was classified into 2 types i.e Members Voluntary winding up and Creditors Voluntary winding up. These distinctions made by Companies Act 1956, has been officially eliminated by Section 59 of IBC 2016.

In terms of Section 59 of the IBC, a Corporate Person who hasn`t committed any default, is only eligible for initiating Voluntary liquidation process. It is imperative for us to fathom, whether the term Default is existing default or includes past default as well? When we are to analyze the definition of Default under IBC, we find out that the definition mentions only the existing debts which are due and  not repaid but payable in nature. The default which has occurred in past and has been paid off, is not included in the definition and is out of scope of Voluntary Liquidation i.e. S/59 of IBC. The default must be existing in nature whether from past or present, it doesn`t matter unless the payment is still due.

Another important condition that is imposed in IBC is that the liquidation happening should not be to defraud any person. It must be reasonable and as per law.

The majority of directors or the partners of the Corporate Person must make a declaration which should be made along with an affidavit to verify that the corporate person is not in default or if any debts are due then it shall pay off the same under the proposed voluntary liquidation.

The declaration should be supplemented by financial statements which must be audited properly along with a valuation report of the corporate person.

Within 4 weeks of the said declaration being submitted, a special resolution shall be passed by the contributors (Contributors Resolution) requiring the corporate entity to be liquidated and then they shall appoint an Insolvency Resolution Professional as a Liquidator.

Within 7 days after passage of the said declaration, creditors who represent 2/3rd value of total debt of Corporate entity, approve the Contributors Resolution.

But who is a Contributory? As per the regulations, a `contributor`  is a person who is member of the company or a partner of a LLP and any other person who may contribute financially to the liquidation process of the corporate person which may benefit the company as a whole.

The Registrar of Companies (ROC) and the Board shall be notified as per the provision of Section 59(4) for the resolution passed under Section 59(3) after taking the approval of creditor or to liquidate the company within 7 days.

Proceedings

After the said amendment, all cases filed on or after the 01/04/2017 shall be governed by the Insolvency and Bankruptcy Code of India and the adjudicating authority shall be shifted from High Court to National Company Law Tribunal only.  But what happens to the cases already pending before High Court? The cases already pending before the High Court even after applicability of the Code shall continue to be dealt with by the Hon`ble High Court of the States.

Thus as per Rule 4 of the Companies (Transfer of Pending Proceedings) Rules, 2016, which was notified in December 2016 and came into effect from April 2017, states that Voluntary Liquidation of companies pending before any High Court before April 01, 2017 shall be dealt by that High Court only. But any fresh Voluntary liquidation process initiated on or after April 01, 2017, shall be instituted before the Hon`ble National Company Law Tribunal and shall be governed by the IBC 2016 and regulations thereof.

Click Above

Under the new amended regulations, the Government has not just simplified the process of Voluntary Liquidation but has also specified time limits or rather time period for various compliances. The procedure for the process of Voluntary liquidation as per the amended regulation is summed up as below specified :-

I: A document is to be submitted called Submission of Declaration to Registrar of  Companies, which shall state that the said company shall or should be able to pay off its debt and it has started the process of voluntary liquidation to not defraud any person or entity;

II: A Special Resolution shall be passed to approve the process of voluntary liquidation and an Insolvency Professional shall be appointed as a liquidator (“Approval“), within a time frame of four weeks after the submission of declaration. An approval of 2/3rd of the creditors shall also be required if the said corporate person has any unpaid debts.

III: As soon as the Approval is granted a Public Notice is to be announced within 5 days of such approval in Newspapers as well as on the website (if any) of the Corporate Person inviting claims or objections of all stakeholders involved.

IV: An intimation about the grant of Approval is to be sent within seven days of such Approval to the Registrar of Companies and the Board;

V: The preliminary finding of the authorised capital, approximations of asset and liabilities, the proposed plan of action etc., is to be made into a Report called Preliminary Report, which shall and submitted to the corporate person within a period of Forty-Five days of the said Approval;

VI: Within Thirty days from the last day of receipt of claims, verification of such claims shall be done and Within Forty-Five days from the last day of receipt of claims, the list of stakeholders involved shall be done.

VII: A bank account on the name of the said Corporate Entity which shall be followed by the words’ involuntary liquidation’, in any of the scheduled banks, for the purpose of receipt of all amount due to the corporate entity;

VIII: The process of sale of all the assets of the Corporate Person and the recovery of amounts which are due to the corporate person and the realization of capital which are uncalled or unpaid in nature or are contributions which are unpaid, shall be done;

IX: The amounts received from the realisation of the Capitals shall be distributed within a period of six months to all the stakeholders involved;

X: A Final Report is to be submitted by the Insolvency Professional appointed as the Liquidator for the Corporate person`s Voluntary Liquidation. Registrar of Companies and the Board shall also submit the final report.

XI:An application is to be sent to the Hon`bleNational Company Law Tribunal for the dissolution or winding up or voluntary liquidation of the Corporate Person,

XI: After the application is submitted to the Hon’ble National Company Law Tribunal, it`s order of dissolution of the Corporate Person shall be submitted within a period of fourteen days to the Registrar of Companies.

The simple steps if to be understood from a simple point of view then it must be summed up as below:-

• The Board of Directors of the Corporate Person shall hold a board meeting and the resolution for voluntary liquidation of the corporate person shall be passed and a declaration of the solvency of the corporate person is also to be issued.
• The shareholders of the Corporate Person shall convene a meeting to approve the resolution for voluntary liquidation of the Corporate Person and an Insolvency Professional shall be appointed as a liquidator of the Corporate Person.
• Any debt owed by the Corporate Person shall be approved by the creditors who represent the 2/3rd of the debt value and the same shall be approved within seven days of passing of such resolution. 
• All the Necessary filings which are to be done shall be done with the Registrar of Companies, Insolvency and Bankruptcy Board of India and Income Tax Authorities.
• After the appointment of the Liquidator, he shall take charge of the Corporate Person and shall proceed as per the set procedure which includes the recovery of amounts which are due to the corporate person and the realisation of capital, the settlement of unpaid debts and the proceeds of the above process which shall be distributed to the stakeholders involved.
• A Public Notice shall be issued by the Liquidator in Newspapers and website of Corporate Person, inviting claims from all the stakeholders involved.
• The appointed Liquidator shall attempt to achieve or rather finish the voluntary liquidation process within a time span of Twelve Months from the date of commencement of liquidation. 
• In case it is found that the accounts of the Corporate Person have been completely wound up, and its assets completely liquidated, the liquidator shall make an application to the Adjudicating Authority i.e. National Company Law Tribunal for the liquidation of such Corporate Person.
• After an application filed by the Liquidator, The Adjudicating Authority shall pass an order, ordering the corporate debtor to be dissolved from the date of the order and the corporate person shall stand dissolved accordingly.
• A copy of the said order shall be forwarded to the concerned authority with which the corporate person was registered.

Conclusion

Before the said amendment was introduced we can safely assume that The Companies Act 2013 divided the whole process into 4 parts which were:

• Winding up by the NCLT on an inability to pay debts [S. 271(1)(A)]
• Voluntary Winding Up (S. 304-323) – where the tribunals didn`t have any authority to entertain petition with respect to winding up as the rules framed by the Supreme Court (Court Rules 1959) anytime before the commencement of 2013 Act will be applicable due to non-notification of provisions of voluntary liquidation.
• Winding up on other than an inability to pay debts
• Appointment of Liquidator

Thus we see that Section 59 of the IBC expedites the whole process by removing the ambiguities and bringing a timeline to the whole process.

Endnotes

1. Insolvency and Bankruptcy Board of India (Voluntary Liquidation Process) Regulations, 2017
2. non-payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not repaid by the debtor or the corporate debtor, as the case may be.
3. Limited Liability Partnership Act

4. Voluntary Liquidation – A Comparative Analysis Between IBC And CA 1956

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 skill.

The post Analysis and Comparison of Option of Voluntary Liquidation under IBC and it’s Parallel under Companies Act appeared first on iPleaders.

This article has been written by Uzair Ahmad Khan, Asst. Blog Manager, iPleaders.

Introduction

Arbitration is an effective alternative dispute resolution. It is the forum in which parties by an agreement between them choose a forum other than the court of law to resolve their disputes. The reason behind the evolution of arbitration is to minimize the burden from the shoulders of the court of law and provide speedy remedy to the parties. Nani Palkhivala observed that there are enormous advantages to arbitral proceedings.

In the words of Nani Palkhiwala, he said “If the law is not to be a system of tyrannical rigidity, but instead to be the efficient and useful servant of a changing society, it must from time be adapted and parts of it replaced. A court of law is like an ancient castle, constantly under repair. There comes a time when it no longer pays to patch it up and it is better to resort to a new, compact house built on modern lines”.

Why arbitration is preferred over the judiciary

Arbitration is an effective forum which provides speedy remedy than the judiciary. Matters in arbitration are disposed within 1 year whereas in courts the parties to the dispute have to wait for several years depending upon the complexities of their case.

Arbitration is also preferred by the parties because of the autonomy granted by it and exercised by the parties in determining the course that the proceedings may take.

Types of Alternative Dispute Resolution Methods

Arbitration

Arbitration is a dispute resolution process which is governed by the Arbitration & Conciliation Act, 1996. Parties to the arbitration agreement and the court have the power to appoint the arbitral tribunal which will resolve the disputes between the parties. The provisions of Part 1 and Part II of the Arbitration & Conciliation Act, 1996 are applicable to the arbitration proceedings. The arbitral tribunal will pass the arbitral award which will be binding on both parties and will be enforceable before the court similar to a court decree.

Conciliation

Conciliation is the process by which parties refer their disputes to a conciliator. The conciliator is appointed either by the parties or by the court on behalf of the parties. Part III of the Arbitration & Conciliation Act, 1996 regulates the conciliation proceedings. The conciliator is not bound by the Code of Civil Procedure, 1908 or the Evidence Act, 1872 during conciliation proceedings. Conciliator helps the parties to reach the final settlement by formulating the terms of the settlement which they choose to adopt.

Mediation

Mediation is a process in which the mediator is required to identify the issues that have arisen between the parties and clarify any misunderstandings that may have occurred and help the parties to reach settlement. The mediator is merely under a duty to guide the settlement proceedings in order to allow the parties to reach their own settlement instead of imposing his opinions upon them. Mediation is regulated under the Mediation Rules, 2009. The mediator is appointed either by the parties or by the court on their behalf. The role of a mediator is more passive in the settlement of a dispute placed before him as compared to a conciliator or an arbitrator.

Lok Adalat

Lok Adalat is a state authority which is regulated by the Legal Services Authority Act, 1987. It is also known as people’s court. The object of a Lok Adalat is to reach a settlement between the parties based on a compromise. The parties do not have to pay any court fees in the Lok Adalat and there are no strict procedural requirements that have to be followed. The proceedings in Lok Adalat are usually presided over by retired judges or lawyers who will give their decision in the matter. The parties cannot appeal against the settlement of the Lok Adalat.

History of Arbitration in India

Third-party settlement of disputes is a part of ancient Indian ethos and culture. However, the settlement of disputes through the institution of the judiciary is a little over a century old and is a result of British rule in India. Despite the long history of the settlement of disputes by alternative means in our country, the first statutory recognition given to domestic arbitration was given by way of the Indian Arbitration Act, 1940.

Retired law professor of Osmania University, Dr. V. Nageswara Rao presented an overview of conciliation proceedings under the Arbitration and Conciliation Act,1996 before the Law Commission of India. He stated that the settlement of disputes through reference to a third party has been part of the “volksgeist” or body of customs of India for time immemorial.

There are basically two types of arbitration proceedings which are conducted. Domestic arbitration proceedings which are conducted between two Indians. International commercial arbitration proceedings which are conducted between the parties, where at least one of the parties is an individual who is a national of, or habitually resident in, any country other than India or a company, or an association, or a body of individuals whose central management and control is exercised in any country other than India or the government of a foreign country.

Overview of Arbitration 1940 Act

The Indian Arbitration Act, 1940 dealt solely with the previously uncodified body of law concerning domestic arbitration proceedings. The objective of the 1940 act was to consolidate and amend the law relating to arbitration.

Key Highlights of the Arbitration 1940 Act

• It gave wide discretionary and supervisory powers to the courts allowing them to regularly intervene in arbitration proceedings.
• It also severely limited the freedom of the parties to choose their preferred means settlement by imposing a number of regulations.
• Section 3 of the 1940 Act, imposes certain implied terms and conditions that were required to be present in any arbitration agreement unless those terms were specifically contracted away.
• The 1940 Act, also grants wide power to the court in matters of appointment or removal of arbitrators and allow the court to modify or remit the award and also pass interim orders.

From the above highlights, it is clear that the arbitral tribunal constituted under the 1940 Act had no real powers but rather acts as a proxy for the court.

Overview of the Arbitration 1961 Act

The statutes dealing with international commercial arbitration were the Arbitration (Protocol and Convention) Act, 1937 and the Foreign Awards (Recognition and Convention) Act, 1961. Before the passing of the 1996 Act, the enforcement of foreign awards either awards passed as a result of international commercial arbitration proceedings was governed by the two above mentioned statues.

Origin of the 1937 and 1961 Act

After the destruction of the first world war, the international community began to recognise the importance of international trade as a means of building a closer relationship between countries. In order to facilitate international trade, it became imperative to develop a means to resolve commercial disputes relating to international trade in a quick and efficient manner.

What was the first attempt of the international community towards international commercial arbitration?

The first attempt towards international commercial arbitration was made by the League of Nations, under whose authority the Protocol on Arbitration Clauses, 1923 was concluded. However 1923, Protocol had a number of shortcomings such as it only allowed domestic awards to be enforced before the national courts of member countries.

What actions were taken in order to overcome the shortcomings found in 1923 Protocol?

In order to overcome the shortcomings of the 1923 protocol, the International Convention on the Execution of Foreign Arbitral Awards, 1927, more commonly known as the Geneva Convention was passed.

Due to the Geneva convention the Arbitration (Protocol and Convention) Act, 1937 was enacted. However, the objectives of the Geneva Convention were laudable but resulting 1937 Act was unable to meet the expectations of speedy dispute resolution and enforcement of foreign arbitral awards. Therefore, it was unable to meet the requirements for encouraging international trade.

How Arbitration Act, 1961 enacted?

The International Chamber of Commerce issued a Draft Convention on International Arbitral Award in 1953 in order to correct the deficiencies under the earlier conventions.

The draft was presented to the United Nations Economic and Social Council which prepared another draft in 1953. The Council forwarded its draft to the member states of the United Nations for their comments upon receipt of which a conference was held in New York.

As a result of all these efforts, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (also known as New York Convention) was adopted on 10 June 1958. The New York Convention gave rise to the Foreign Awards (Recognition and Enforcement) Act, 1961 in India.

Is Arbitration Act, 1937 and Arbitration Act, 1961 is in existence?

No, because of the deficiencies in both the acts, they have been repealed. However, awards made pursuant to agreements concluded pursuant to either the Geneva Convention and New York Convention have been recognized under Part II of the 1996 Act.

Objective of UNCITRAL Model Law

UNCITRAL stands for United Nations Commission on International Trade Law. It adopted the UNCITRAL Model Law on International Commercial Arbitration on 21 June 1985. The objective of the Model Law to provide a set of rules which would facilitate the settlement of international commercial disputes by bringing about uniformity in the laws of member countries in reforming and modernising their national laws on arbitration.

Key Highlights of the Model Law

It covers every stage in the arbitration process as-

• beginning from the recognition of the need to curtail judicial intervention to the formation of the arbitration agreement.
• appointment of the arbitral tribunal
• any challenges to such appointment
• basic rules of conduct of arbitration proceedings
• termination of proceedings by the making of the award
• finality of awards and grounds on which the arbitral award challenged before the national courts.

The Model Law also forms the basis for the Arbitration & Conciliation Act 1996 in keeping with India’s International obligations.

Arbitration & Conciliation Act 1996

The Arbitration & Conciliation Act, 1996 repeals the Arbitration Act, 1940; the Arbitration (Protocol and Convention) Act, 1937; and the Foreign Awards (Recognition and Enforcement) Act, 1961 and reformulates the law in one consolidated statue. It also seek to amend and consolidate the law relating to domestic arbitration, international arbitration and the enforcement of foreign arbitral awards.

The Arbitration & Conciliation Act, 1996 is divided into three parts as-

• Part I of the act is a reproduction of the Model Law which deals with rules regarding practice and procedure before the arbitral tribunal.
• Part II deals with the recognition and enforcement of foreign awards. Part II is divided into two chapters.
  • Chapter I concerns award made pursuant to agreements under the New York Convention.
  • Chapter II deals with the enforcement of foreign awards under the Geneva Convention.
• Part III deals with conciliation proceedings.

Difference between the 1940 Act and the 1996 Act

Conclusion

As Nani Palkhiwala said a court of law is like an ancient castle, constantly under repair. There comes a time when it no longer pays to patch it up and it is better to resort to a new, compact house built on modern lines”. The law of arbitration is continuously evolving and improving day by day in order to provide people with an effective body to resolve their dispute effectively and efficiently and by reducing the burden from the shoulders of the judiciary by introducing latest amendments to the act accordingly as per the need of the society.

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 skill.

The post Concept of Arbitration in India appeared first on iPleaders.

This article is written by Bhawna Agarwal with inputs from Ramanuj Mukherjee, CEO, LawSikho.

Women have long broken the monopoly of men in the legal domain. However, we still do not have equal representation of women amongst Senior Counsels or judges or Justices of the High Courts or Supreme Courts.

Nonetheless, in one area of law women are doing conspicuously well within the legal profession. And that is in in-house counsel role. I am not saying that there is no gender gap in India Inc’s boardrooms, but clearly a lot of women have made it as General Counsels, Director Legal or Head Legal. Way more than the number of Senior Advocates or Justices, in any case. I am not in a position to do a comparison with female partnership in corporate law firms at the moment, although we fully intend to do such a study soon!

In any case, this is a compilation of a list of 30 women who have risen to the top of corporate hierarchy within in-house legal teams in market leading brands. We are not claiming that is list is conclusive or exhaustive, it is just a list based on publicly available information that we could gather. We have tried our best to provide a representation of their career journey and the kind of work they do, and we may have missed out critical information, or failed to include someone who deserved to be on this list.

We would love to improve this list based on information you can share, which we hope you will share with us in response or through comments.

This compilation has been made by Bhawna Agarwal, who has been interning with us. Over to Bhawna.

A general counsel is the chief lawyer of the legal department. There is no hierarchy in this list, and we do not intend to represent that anybody on the list is better than others by virtue of being listed ahead of the rest. 

Young lawyers should read this list in order to imagine a career path that could perhaps lead them to be a General Counsel one day, and visualise how they could get there.

If you are interested in working in in-house legal teams and need help with that, feel free to reach out. We also have helped in-house legal teams of many leading organizations with their internal training requirements, including iconic companies like ICICI Bank and Mahindra for example. 

Before we proceed further, do check out our upcoming courses in which we are accepting enrollment:

DIPLOMA

Diploma in Entrepreneurship Administration and Business Laws

Diploma in Companies Act, Corporate Governance and SEBI Regulations

EXECUTIVE CERTIFICATE COURSES

Certificate Course in Advanced Corporate Taxation

Certificate Course in Arbitration: Strategy, Procedure and Drafting

Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting

Certificate Course in Trademark Licensing, Prosecution and Litigation

Certificate Course in National Company Law Tribunal (NCLT) Litigation

Now let us introduce you to some extraordinary female General Counsels from the legal industry in India. Do not forget to share this list with your female advocate friends and inspire them about what heights they could scale in their own careers.

1. Anubhuti Agrawal

(Senior Counsel, Development and Operations, India – Hilton Worldwide)

After completing her LLB from NLSIU, she joined Amarchand & Mangaldas & Suresh A Shroff & Co. where she rose from a position of an Associate to Partner level in a period of over 9 years. During her long service with the company, she also pursued her LLM from University College of London. She later joined Shardul Amarchand Mangaldas as a Partner for a brief period of 9 months.  

In 2015, she joined Hilton as a Counsel, development and operations. During 2017, the time when Good and Sales Tax was introduced in the country, she worked with different departments like IT, Tax, Finance, revenue management so that they could make a smooth transition and adapt to the changes taking place in the system. In 2018 she was promoted to the position of senior counsel, and she is now a part of the Asia pacific legal team of Hilton. She not only looks after the legal functions of Hilton in India but also manages the function in Nepal and Bhutan. She is the only lawyer in the global legal team to manage over 100 countries in matters related to development. She and her team have worked on one of the largest transactions with the Embassy Group which was completed in 18 months and is also considered as her career highlight.

2. Shahana Basu

(Director, Legal and Regulatory Affairs – Max India Limited)

She is an experienced corporate lawyer with extensive experience globally in advising and managing both legal and business operations of MNCs. Previously she has worked with top law firms like Sullivan & Cromwell, Jones Day, and Linklaters in the US and UK.

In 2012 became the chief legal officer of Apollo Tyres, one of the largest tyre manufacturing companies in India. She later joined Amira Nature Foods, a company listed on the NYSE and global provider of Indian food.  As a general counsel she provided strategic advice to the top management and business heads in India, UAE, Germany, and the UK.

Since 2016, she has been working with Max India, a company that is part of Max Group. As a legal and regulatory affairs director, she has been able to use her decades of international experience across the entire spectrum of legal practice. With her strong legal, analytical, relationship building and business development skills.

3. Preeti Balwani

(General Counsel, India – The Kraft Heinz Company)

Before joining The Kraft Heinz Company in 2017, Balwani spent a decade in private practice handling cases related to corporate M&A, private equity and other financial laws. She made a shift to the in house counseling in 2016 by joining Welspun Group. As a general counsel at Heinz, she is responsible for corporate and governmental affairs, legal and regulatory functions and corporate secretarial work. She acts as a custodian of the company’s ethics and compliances. She led an investigation which was a result of an anonymous complaint call regarding their ethics and compliances and exposed a series of distributor malpractices.   

Under Balwani’s directions the company conducted a company wide audit which was done for the first time ever in the organization. After her joining the company has saved a lot on litigation matters by reducing the legal vendors, closing pending cases. 

4. Sanjit Kaur Batra

(Legal Head, South Asia- DuPont India)

After completing her law from Kurukshetra University in 2000, she started her career as an associate in Punjab & Haryana High Court. She later joined Lall & Sethi as a senior associate. Before moving to in-house in 2012 she has worked with Nucleus Software as associate manager lead and UPSTO as Commercial specialist for intellectual Property for South Asia area.

In 2012 she was roped in by DuPont, a Fortune 500 MNC, as an in-house counsel. She became the legal head in 2014 for South Asia region. In her current role she works in complicated M&A transaction as well as advises on policy advocacy for the organization. Along with this, she has worked on many IP litigation activities. Recently she was given additional responsibilities APEC Counsel (Health and Biosciences).

5. Padmaja Chakravarty

(General Counsel – Citibank)

Padmaja Chakravarty completed her B.A L.L.B (Honors) degree from NLSIU and holds a Bachelor of Civil Law degree from St. Anne’s College, University of Oxford. She has had a long association with Citi Bank. She joined Citi Bank in 2012 India where she worked on legal affairs regarding investment banking, capital markets and public markets.

In 2016, she shifted to Honk Kong and became the head of Citi’s Asia Pacific Capital Markets Origination legal team. After working for nearly two years in Honk Kong she took up her current role as general counsel in 2018. She heads the legal corporate and secretarial departments of India, Bangladesh, and Sri Lanka. The legal team advises on all the legal and franchise affairs of the bank in the countries.

Before joining Citibank she has worked with Sullivan & Cromwell LLP, London and Linklaters, London. She can practice law both in India and the UK. 

6. Ipsita Dutta

(Executive Director, Legal – Morgan Stanley)

After spending over 8 years working with Amarchand Mangaldas and heading the financial regulatory practice group and rising to the position of a Partner, she joined Morgan Stanley in 2016. In her present role as head of the legal team at Morgan Stanley, she collaborates with regional and global teams ensuring the global techniques are practiced by the teams. She deals with legal and regulatory framework of different jurisdictions. As part of her responsibilities, she deals with affairs related to institutional equities broking, investment banking, investment management and global in-house centers.

Some of her key assignments include IPO of HDFC Standard Life Insurance, secondary block sale of TCS shares by Tata Sons, HDFC Asset Management Company Limited IPO. She is also part of the company’s CSR Committee as well as chairs the sexual harassment committee for one of the offices in Mumbai. 

7. Vidyut Gulati

(General Counsel  & Director, Legal – Bharti Airtel)

Post her graduation from Campus Law Center, Delhi University, Miss Gulati started her career with Dua Associates and later joined Amarchand Mangaldas for over 8 years. She was involved in matters related to complex M&A, multi-party negotiations and led transactions related to private as well as public sector companies engaging in sector like oil and gas, media, real estate, travel etc.

She started her in-house career with Cairin Oil and Gas in 2016. After working with them for a year she shifted to Bharti Enterprises (Bharti Airtel Group) in 2017, as director of the legal team. She became the general counsel of the company in 2019. As a GC she focuses on strategic transactions and decisions of the group, especially on M&A decisions for Africa. She has worked on many high stake matters on both corporate and litigation side. 

8. Inderpreet Sawhney

(Group General Counsel – Infosys Limited)

She started her career in the information technology and services industry.  She has previously worked as a legal manager in ITC for a period of 5 years. In 2011, she switched to IT giant Wipro Limited, after working with the Chugh Firm for 14 years. At Wipro, she assumed the position of Sr. Vice President and General Counsel.

At her present role as Global General Counsel and Chief Compliance Officer of Infosys, she handles matters and activities related to legal and compliance functions. She supports the business of the company by ensuring the implementation of compliance and ethics program in the company across the world.  Apart from her role as GC, she is also a part of the National Advisory Council of South Asian Bar Association of North America (SABANA)

She holds a B.A (Hons) Economics and L.L.B degree from Delhi University. She completed her L.L.M from Queen’s University, Kingston, Canada. 

9. Smita Priyadarshani

(Senior Managing Legal Director – Dell EMC)

With a tremendous academic background, Miss Priyadarshani started off her legal career as an associate at Luthra & Luthra Law Offices. After working with the law firm for 4 years, she became a Legal Counsel at Perot Systems Corp. The corporation was acquired by DELL in 2009 and she was promoted to senior management team of DELL.

In her current role, she is the lead commercial lawyer for Asia Pacific and Japan region as well as provides support to other regional profiles. She was one of the inventors of a global team by the name “Global CLaaSS” (Contracts and Legal as a Shared Service). The global team hires legal talent in India which provides legal support to their various offices globally. Apart from creating Global CLaaSS, she manages various internal matters, as well as acquisitions and supported the smooth transition of Perot to Dell.

10. Sabira Amajd Kadri

(Vice President of Legal Affairs – The Phoenix Mills Ltd.)

She started her career at KMBC Bank in 1993; she was part of the bank’s in-house legal team. Over the years she dealt with matters related to large property acquisition transaction and was also a part of the litigation team of the company. She dealt with many domestic arbitration as well as high profile PILs. Before joining Mahindra & Mahindra Limited, she briefly worked in a private practice firm and then came back to in house counseling. At Mahindra & Mahindra Limited she was deputy legal manager and handled various industries like Aviation, Engineering, Spare parts Division. Provided legal support to large M&A transaction.

In her current role, as the Vice President Legal Affairs at Phoenix Mills, she heads a team of over 55 legal and leasing staff members. She oversees matters related to litigation, negotiation and legal training of the company.

11. Roop Lamba

(General Counsel, India and South Asia – Rolls Royce)

After completing her L.L.B from Panjab University in 2002, she started her career as a standing counsel with Amarjeet and Associates. In 2005, she moved into an in-house legal role at Castrol India. Through the years she has worked with many companies like Hindustan Unilever Limited, Louis Dreyfus Commodities, Philips Electronics, Whirlpool India and Philips Lightning India Limited as the general manager or legal head of in-house legal teams.

In her current role as General Counsel at Rolls Royce, she is the head of the Ethics and Compliances Team for India and South Asia. She is responsible for setting up the Legal, Ethics and Compliances of the company in India. She is also the co-founder and managing partner of Loomba Legal Services. The company provides legal advice to global leading brands in the FMCG Industry, Liquor Industry, and Durable Industry.

She has served as a Guest Faculty to Bureau of Police Research and Development under Ministry of Home; where she trained police officers from entire North India, Ukraine, Afghanistan, Uganda etc. on IPR and Cyber Laws and Crimes. 

12. Manjaree Chowdhary

(General Counsel and Executive Director – Maruti Suzuki India Limited)

After a long career as a lecturer, Miss Chowdhary pursued her L.L.B while having a full time job. She pursued her L.L.M from University of London soon after. She started her legal career as an associate to advocates of Delhi and Chandigarh High Court.

She joined Dua Associates, full service legal firm for a brief time of 3 years and then shifted to in-house practice. She joined Genpact, as assistant vice president-legal and was closely involved in setting up the Legal Service Centre to provide support to legal teams primarily in the US, EU and Asia.

She rose to the position of Vice president- Legal and took up the same role at GE plastic (now SABIC). She successfully led the demerger of GE plastic and selling it to Saudi Basic Industries Corporation.

Before joining Maruti Suzuki India Limited, she was the general counsel of GE-Healthcare and Power for South Asia. In her current role as Executive Director and General Counsel, she provides legal compliance and regulatory advice to the Board and the Management.

She is the first woman General Counsel at Maruti Suzuki.

13. Priyanka Sinha

(General Counsel and MD – Vodafone Shared Services)

After working for various law firms including K&S Partners, Miss Sinha joined Pernod Ricard India, largest multinational alcoholic beverage company, as Legal Manager where she handled the litigation portfolio, IPR issues of the company, managing documents that supported M&A transactions like Sales and Marketing agreements.

She has also worked with companies like Honeywell, Convergys, UnitedHealth Group as Director or Manager-Legal. Before coming to her current role she worked with Yum! Brands, the largest restaurant company with its flagship brands like KFC, Pizza Hut and Taco Bell. She was the Chief Officer- Legal, Compliances and Corporate Affairs India and adjoining countries.

In 2017, she joined Vodafone as the General Counsel for VSS (Vodafone Global Shared Services). Handling end to end legal, risk and compliances for VSS locations like India, Hungary, Romania and Egypt are some of her responsibilities.

She is currently handling dual profiles of Centre Head for India and General Counsel for India, EU and Egypt.

14. Tejal Patil

(General Counsel – General Electric)

In the past, Miss Patil has worked with Wadia Ghandy & Co., a well-known law firm based in Mumbai. She started her in-house career when she joined the multinational corporation GE, in 2001. She was based in Singapore until 2012, where she served as the general counsel for GE Lighting Asia Pacific and other aviation, healthcare etc. GE businesses.

In 2012 she shifted back to the country and assumed her role as general counsel for GE South Asia. She leads the legal and compliance team of over 50 professionals. She assisted with GE’s acquisition and integration of Alstom’s power and grid business, GE’s largest ever acquisition.

She played a key role in securing the largest FDI from Indian Railway Industry for the company. The investment helped them set up a diesel locomotive project deal.

Tejal completed her L.L.B from Government Law College, Mumbai. She is a qualified solicitor in England & Wales and Bombay Incorporated Law Society. 

15. Vidya Venugopal

(Counsel – World Bank)

After completing her graduation from NUALS Kochi, she joined ICICI Bank in 2007. She worked primarily on transactions related to Treasury, Bullion and Fundraising. She specialized in negotiation and drafting of bullion agreements. Resolved investor grievances related to bonds and securities issued by the bank. After working with ICICI Bank for 3 years, she pursued her L.L.M from Trufts University- the Fletcher School of Law and Diplomacy.

In 2012 she joined Wadia Ghandy & Co., a well-known law firm based in Mumbai as an associate. She was with firm’s banking practice team. Later she was promoted to senior associate. After working for almost 5 years in Wadia Ghandy & Co., she joined the World Bank as a counsel.

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There are 4 legal counsels including her. Her work at World Bank is mainly concerned with project financing and supporting Bank investments in all sectors and countries. It also includes advising countries on the management of their offices and handling day to day issues that may arise.

16. Aditi Chopra

(Director and Legal Counsel – Microsoft)

In 2002, she started her legal career with Dua Associates, full service legal firm, as an associate. After working with the firm for two years she joined Amarchand & Mangaldas & Suresh A Shroff & Co. In a span of 6 years she worked on various issues like foreign investment, venture capitalist, PE, general corporate advisory etc. cross many sectors.

She started her in-house career with Ibibo Group as a General Counsel/ Legal Head for nearly a year. After IBIBO, she started her job as a counsel in International Business Machines where she was a part of many multi-million dollar negotiations related to contracts with multinationals in India and globally. Before joining her current role at Microsoft, she worked with Network18 Media & Investment Limited for a year and a half as SVP. At Microsoft, she is the Direct and Legal Counsel.

She holds degrees in Commerce and Law.

17. Dipali Talwar

(Group General Counsel – Tata Steel)

Talwar started her career as a litigator in Delhi High Court and Supreme Court of India. Later she joined the law firm Arthur Andersen in India, where she worked on matter to corporate law and was a regulatory policy advisor to government, international institutions and companies working in various sectors.

She shifted to Pfizer, a global research pharmaceutical company, the legal director and general counsel for India and South Asia. She was then promoted to senior director of global business transactions, where she advised on transactions and formulated strategies for market entry and expansion of business.

Presently she is the group general counsel for Tata Steel, Indian steel making MNC. She is a part of the Board of the company. She is a member of Delhi Bar Association, New York State Bar and the US India Business Council Legal Executive Committee.

She completed her L.L.B from University of Delhi and L.L.M from Harvard Law School.

18. Dipti Kotak

(Chief Legal Officer – Reliance Industries, Media Business)

With her career experience of more than 20 years, she was majorly a part of Sony Picture Networks India. She was earlier the Legal Vice President of Sony Entertainment Television Pvt. Ltd. for 13 years, and then got promoted to Senior Vice President of Sony Picture Networks India.

In 2018, joined the media and entertainment sector of Reliance Industries as the Chief Legal Officer.  This sector mainly investments in production of movies, web series etc. Her areas of expertise include digital media, intellectual property, post production, copyright laws, licensing and many others.

She completed her law degree from Government Law College, Mumbai

19. Rashmi Kathpalia

(Vice President Legal – Technip India)

She started her law career in 1988 as an advocate under Mr. Kapil Sibal, Senior Advocate, Supreme Court of India. After working with him for a decade, she went onto pursue her L.L.M.

Post her L.L.M, she joined Bechtel Group, a multinational corporation based out of US, as the sole general counsel for India and SouthWest Asia. She drafted contracts, negotiated matter related to employment, statutory and regulatory compliance corporate governance. She managed all arbitration and litigation matter in India and advised on business matters related to different industrial sectors like Telecom, Power, and Mining & Metal. She advised on projects going on in India as well as Europe, Africa, Middle East and SouthWest Asia (EAMS). She worked with the company for 17 years and became the Chief Legal Advisor.

In 2015, she shifted to her current company, Technip India. She is the Senior Vice President Legal, and advises, directs, supervises as well as litigates matters related to commercial transactions, contract negotiation and compliance matters.

She completed her L.L.B from University of Delhi and L.LM from College of Law, York.

20. Shukla Wassan

(Executive Director Legal, South Asia-Hindustan Coca Cola Beverages Pvt Ltd)

With her career of over three decades, she has been a company secretary of Reckitt Benckiser, Xerox India, & Max New York Life Insurance Co. She started her legal and in house career with Max New York Life Insurance Co. Ltd as the Assistant Vice President Legal for two years.

Before joining the current role, she was the Executive Director of Legal and Company Secretary at Xerox India Limited. 

In 2008, she shifted to Hindustan Coca Cola Beverages Private Limited. She is the Executive Director – Legal and Company Secretary- South Asia. She is the Chairperson of International Beverages Pvt. Ltd., Bottlers Nepal Limited (Bangladesh) and Bottlers Nepal (Terai) Limited, Nepal. She is also Non-Executive Director of Coca Cola Beverages Sri Lanka Ltd.

She strategizes legal, regulatory, compliance framework and corporate governance. She looks after the smooth and coordinated functioning between the Indian Management and Overseas Parent Company as well as Joint Venture partners.

She has completed her legal education from Calcutta University and is also a member of the Institute of Company Secretaries in India.

21. Aditi Jha

(Counsel – LinkedIn)

In 2005, post her L.L.B, she joined ITC Limited as Assistant Legal Manager. She worked with the company for over 6 years during which she was promoted to the position of Senior Legal Manager. She managed the global IP portfolio of the company. After gaining substantial amount of work experience she took a sabbatical during which she pursued her L.L.M in Science and Technology.

After her sabbatical, she joined Nishith Desai Associates as a senior attorney. She worked on transactional and advisory matters of Technology Media Telecom, general commercial law, and intellectual property. After working with the company for almost 2 years, she joined Johnson & Johnson as Senior Manager- Legal; she was later promoted to Senior Counsel.

Currently is the Legal Director of LinkedIn. As Lead Counsel (India) she supports the company’s legal matters in India related to compliance issues, she organizes as well as negotiates enterprise agreements. She also performs advisory functions when it comes to matters relating to employment, telecom, anti-competition, data privacy and antitrust.

She pursued her L.L.B from NUJS and L.L.M from Stanford University Law School. She has also done a PG Diploma in Patents from NALSAR.

22. Sheetal Sawhney Kapur

(Director – Legal and Senior Counsel – Netflix)

She has recently joined Netflix as Director-Legal and Senior Counsel. Her role mainly consists of providing legal assistance in partnerships and transactions.

She was the Regional Counsel to India and West Asia at Google. She advised on shaping the products from a legal point of view. Her responsibilities involved dealing with matters on privacy and data protection, regulatory liaisoning/licensing, M&A, FinTech & payments projects, geographic projects, telecom & broadcasting projects, and various other government-led initiatives. She worked with PayU as Head- Legal, Compliance and Regulatory and worked on similar cases. She has worked briefly with Private Equity and M&A team at J. Sagar Associates.

She is widely regarded as one of the most influential people in the sector of Payment Laws in India. She pursued her L.L.B and L.L.M from Indian Law Society Law College, Pune and University of Melbourne respectively.

23. Shruti Mehta

(Principal Counsel, Walt Disney Company (India) Private Limited)

After her graduating, she joined Trilegal, a renowned full service legal firm. She worked with the firm for 5 years during which she handled matters related to corporate law like M&A, private equity, joint ventures and many others. During the years she was promoted to Senior Associate.

In 2007, she joined Amarchand Mangaldas, as the principal associate. She worked on company’s matters related to legal compliances and banking laws. By 2010, she moved in-house when she joined GE Capital. GE capital is the financial services division of General Electric. She worked with the company for nearly 4 years and became the Vice President- Legal.

In 2014, she joined Walt Disney Company (India) Private Limited. She is currently Principal Counsel at the company.

She holds a law degree from Government Law College.

24. Shelly Kohli

(General Manager – Legal Business Partner – Unilever)

She recently joined Unilever as General Manager- Legal Business Partner.

After working in various law firms for over 5 years, Miss Kohli shifted to an in-house. Previously she worked in firms like Crawford Bayley & Co., Wadia Gandy, Trilegal and CPA Global.

In 2010, she joined GE (Energy Management) as Senior Legal and Compliance Counsel, South Asia. She presented the legal side for business transactions of the company. Her responsibilities included mitigating and identifying legal risks in commercial opportunities.

In 2015, she became the Assistant General Counsel for Levi Strauss & Co., South Asia. She managed a team of lawyers who worked on matters related to commercial transactions, real estate, employment and IP matters.

She holds bachelors and masters degree in Law from Mumbai University and New York University School of Law. She can practice law in India as well as the USA.

25.  Pujarini Maulik

(Vice President, Legal – InMobi)

She is currently the Vice President- Legal of InMobi, an Indian online advertising company. She has been with the company for the past 6 years. In 2012 she joined as the global head of contracts. Later on, she was promoted to Director, Associate General Counsel. She has been responsible for the smooth functioning of the company in the constantly advancing advertising technology markets and their legal framework.

Previously she has worked with Infosys and Dr. Reddy’s Laboratories. She worked with Infosys for a period of 6 years from 2006-2012. She was responsible for contracting and negotiating complex deals. She also provided clients with legal opinion on legal and commercial issues. She briefly worked with Dr. Reddy laboratories where she was mainly responsible for drafting agreements and compliance checklists.

She completed her L.L.B from Symbiosis International University.

26. Ananya Sanyal

(Senior Regional Counsel, APAC – Adobe)

With a career span of more than 10 years, Miss Sanyal with big brands in India as well as worldwide. She started her career with Amarchand Mangaldas, a full service law firm, as an associate. After working for 3 years with the company she shifted to an in house.

In 2009, she joined Infosys Limited as a Legal Counsel. She handled the commercial transactions of the company from a legal point of view as well as provided a legal opinion to the management of the company. She worked with them for 3 years and then made a switch to Adobe.

In 2012, she joined Adobe as the legal counsel. After working with the company for 4 years as the legal counsel she was promoted to the position of Regional Counsel for Asia Pacific Region. She is currently the Senior Regional Counsel for Asia Pacific region.

She completed her L.L.B in 2006 from NUJS, Kolkata.

27. Debolina Partap

(General Counsel – Wockhardt)

An experienced legal entity she has a career of more than 25 years. She has majorly worked with two companies.

Initially, she worked with the legal in IDBI Bank, a government-owned financial institution. After working with the bank for more than a decade, she joined Wockhardt.

In 2006, she joined Wockhardt, a pharmaceutical and biotechnology company, as the legal head. As the legal head of Wockhardt hospitals, she managed many matters related to US Food and Drug Administration Laws.

She was promoted to the general counsel at group level in 2011. She provided the legal team with legal knowledge on technology for them to give effective and speedy solutions that can enhance the company’s business. She leads a team of 11 and directly reports to the managing director and chairman.

She is also a part of the company’s corporate strategy governing council. She helps the company to recognize the business risks and provides a solution with litigation practices.

28. Sonal Basu

(General Counsel – Mindtree)

After completing her education, she started her career as a legal counsel at Wipro. Her responsibilities included drafting as well as negotiating agreements relating to software license, teaming agreements and master services agreements. She later joined J. Sagar Associates, a full service law firm, for a brief time of 2 years.

She moved back to in house roles by working at Nokia for almost two years, she became the Senior Corporate Counsel at Wipro. She handled multifaceted IT transactions and provided legal opinion on compliances for APAC and the US.

After a short stint at L.A.W (Lawyers at Work), she joined Mindtree in 2014. She was the Director-Legal and handled global It transactions and compliances for the company. She soon became the General Manager and Head of Legal(US).she left the company for about a year and joined IBM as a counsel for India, South Asia region.

Currently, she is the General Counsel at Mindtree. Her responsibilities entail business meeting, drafting and negotiating agreements, interacting with external counsels. She is one of the board members of the company’s Culture Protection Committee.

She graduated from Government Law College, Mumbai. She also holds an L.L.M degree from the London School of Economics and Political sciences.

29. Lubinisha Saha

(General Counsel, India & South Asia – Airbus)

She is the general counsel for Airbus, a multinational aerospace corporation based in the Netherlands. She has 15 years of experience and has excellent consultation skills in matters related to IP, Joint Venture, employment and regulatory compliances.

She has had a long association with US conglomerate GE(General Electric). She has worked with GE Oil & Gas, Baker Hughes and GE Renewable Energy. She was the legal head of the company. She led the integration of GE Oil & Gas and Baker Hughes. She has led many strategic initiatives by the company which includes channel partner management, commercial training, segmentation risk mapping and many more. She has also worked with GMR Group, as the Associate Manager. Her short stints include   Cairn India Limited and Baker, Mckenzie Wong and Leow.

Before moving to in-house roles she was an associate at J. Sagar Associates and Luthra & Luthra Law Offices, top private practice law firms in India.

She holds a bachelor’s degree in law from NALSAR, University of Hyderabad.

30. Lopamudra Rao

(Director – Legal, OLA)

She started her career with Trilegal, a private practice firm, as an associate. She worked with the private equity team and she worked on matters of due diligence. She drafted and reviewed memoranda, for many corporate clients of the company. She shifted to Luthra & Luthra Law Offices, as a senior associate. Her responsibilities at the firm included drafting and reviewing investment transaction documents, commercial contracts and memoranda for the clients.

In 2011, she joined C-Quest Capital for three years as a general counsel. She worked with the finance and operation team of the company, managed and resolved commercial disputes and she was also involved in various business transactions and negotiations. In 2017, she joined OLA as an associate Director Legal and was promoted to Head of Legal/Senior Director earlier this year. In her current role, she has been a key member in Ola’s expansion overseas in the United Kingdom, Australia and New Zealand. She has also been a part of major acquisitions and also helped in launching different facilities by OLA like Ola Electric Vehicles and Ola Play Initiatives.

She is a NALSAR alumni.

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 skill.

The post Can women rise to the top of legal profession? India’s Top 30 Female General Counsels and Chief Legal Officers appeared first on iPleaders.

This article has been written by Adv. Aditya Gaggar.

[The following article that sought to explain the true nature of Article 370 and Article 35A and the consequences following their repeal, was written prior to their abrogation on 6th August 2019 vide the Constitutional Order No. 273. However, the explanation and the reasoning therein continues to remain relevant in the following days as the national conscience carefully weighs the pros and cons of the controversial move and prepares to witness the ultimate constitutional challenge as it unfolds before the Apex Court.]

Status of Art. 370 – Temporary or Permanent?

As the title of the Article suggests Art. 370 is a special provision for the State of Jammu and Kashmir granting special status to that state. There should however not be an iota of doubt in anyone’s mind that the said provision was always meant to be a temporary provision. The same is evident from the fact that the very title of the said Article begins with the words “Temporary provisions…”. This is further corroborated by the fact that the said Article finds place within Part XXI of the Constitution i.e. “Temporary, Transitional and Special Provisions”. The fact that the word used here is ‘and’, not or, suggests that all the provisions within the said part are meant to be temporary and transitional besides being special.

Historically speaking, this provision was drafted in 1947 by Sheikh Abdullah, who had been appointed prime minister of Jammu & Kashmir by Maharaja Hari Singh and Pandit Jawahar Lal Nehru. Even at that time Sheikh Abdullah had argued against placing of Article 370 under temporary provisions of the Constitution as he wanted ‘iron clad autonomy’ for the state, however the Centre stood their ground and didn’t not relent.

However, despite the aforementioned clear wordings within the constitution, the High Court of Jammu and Kashmir in its final order and judgment dated 09.10.2015 in Ashok Kumar and Ors. v. State of J&K and Ors. (SWP No. 1290/2014 and MP No. 1685/2014) held that the said provision has now become a permanent provision of the Constitution since it cannot be abrogated, repealed or even amended as mechanism provided under Clause (3) of Article 370 is no longer available. 

Structure of Art. 370

The very first provision of Art 370 i.e. Art 370 (1)(a) states about the non-application of Art 238 in relation to the State of Jammu and Kashmir. This provision itself suggests that the said Article has indeed become obsolete since the referred Art 238 has already been repealed way back in 1956 by the Constitution (Seventh Amendment) Act. Therefore the said provision is infructuous and invites for a long due amendment/repealment of Art 370.

The second provision of Art 370 i.e. Art 370 (1)(b)(i) and (ii) is the heart and soul of the said Article. This part of the Article bases itself upon the Instrument of Accession and restricts the power of the Parliament only to such subjects in the Union and Concurrent List which in consultation with the Government of the State are declared by the President to correspond to such matters specified within the Instrument of Accession with respect which the Parliament may make laws. It is submitted that this provision is highly discriminatory and goes against the basic structure of the Constitution of India in as much as it takes away the residuary powers of the Central Legislator and vests the same with the State Legislature. It further leaves the interpretation of the Instrument of Accession solely within the domain of the Government of the State of Jammu and Kashmir giving the Government of the State of Jammu and Kashmir unbridled power extending even to restricting the right of people domiciled elsewhere in India (even when such people are not its subjects) and therefore also impinges upon the sphere of the independent judiciary which is the guardian of the Indian Constitution. It further tends to make the Indian Constitution subservient to the Instrument of Accession and really the will of the Government of the State rather than the other way around. This is completely against the fabric of the federal structure and separation of powers as envisaged within our constitution.

It is further submitted that the explanation of the said article has been unilaterally amended by the President by a Presidential Order without the same being placed for consideration before the Parliament on the recommendation of the Constituent Assembly of the State of Jammu and Kashmir when the words “Maharaja of Jammu and Kashmir” were replaced with the words “Sadar-i-Rayasat of Jammu and Kashmir”. Later still, the words “Sadar-i-Rayasat of Jammu and Kashmir” were replaced simply with “Governor”. It is submitted that this is in violation of the strict procedure for amendment provided within the Constitution itself and rather makes it even simpler to amendments than State Legislations since the same bypasses any scrutiny either by the State Legislature or the Central Legislature. It is further submitted that this is again an obsolete provision given the fact that the Constituent Assembly of the State of Jammu and Kashmir already stands dissolved without any successor.

The third provision of Art 370 i.e. Art 370 (1) (c) is a savings provision which iterates the applicability of Art 1 to that State as well. However, in my humble opinion, this is more of a saving face provision.

The fourth provision of Art 370 i.e. Art 370 (1) (d) again reiterates the special status already provided to the State by Art 370 (1) (b).

Art 370 (2) only provides for the placing of the concurrence of the Government of the State before the Constituent Assembly once it convened for its decision but does not provide for any alternate when the Constituent Assembly stands dissolved.

The proviso to Art 370 (3) may be subject to the harshest of criticism given the fact that despite the Art 370 (3) providing for a way to termination or modification of the operation of the said Article yet the proviso to the said Article again ties the hands of the President by making the recommendation of the Constituent Assembly (a body that has no successor and is no longer in existence) necessary.

Thus the provisions under Art 370 are unique in the sense that no other State Government has been given such wide ranging extra-territorial powers as to override or bypass the will of the parliament and to do such things almost unilaterally that adversely affects the rights of not just its own subjects but also the rights such citizens of India who are domiciled and resident elsewhere throughout the territory of India by amending the Constitution. It is these powers that are ultra-vires to the Federal framework and Basic Structure of the Constitution.     

Implication of absence/repeal of Art. 370

According to Art. 370, except for defence, foreign affairs, finance and communications, Parliament needs the state government’s concurrence for applying all other laws. Thus as of today, the state’s residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians. Therefore logic dictates that a direct effect of the repeal of the said Article would entail that the complete set of laws as applicable elsewhere in India shall immediately come into effect in the state of Jammu and Kashmir as well. 

As an indirect result of Art. 370 (and a direct result of Art. 35A), Indian citizens from other states cannot purchase land or property in Jammu & Kashmir. The Centre presently has no power to declare financial emergency under Article 360 in the state. Thus, an emergency can declare in the state only in case of war or external aggression. The Union government can therefore not declare emergency on grounds of internal disturbance or imminent danger unless it is made at the request or with the concurrence of the state government. This impediment would also be removed by the repeal of Art. 370 thereby giving the Centre a better handle to control the deteriorating situation especially with regard to the continued rise of Islamic terrorism and insurgency from PoK into the valley. It might even remove the need for Armed Forces Special Powers Act in the State, in the long run. 

Article 370 also suggests that the name and boundaries of the State cannot be altered without the consent of its legislature. The need for such a change of name and boundaries of the State is undoubtedly debateable but that debate must take place only in the central legislature of the union and not the state legislature whose members might harbour separatist sentiments, if at all.

While Article 370 itself is gender neutral, the definition of Permanent Residents in the State Constitution — based on the notifications issued in April 1927 and June 1932 during the Maharajah’s rule — are thought to be discriminatory. The 1927 notification included an explanatory note which stated: “The wife or a widow of the State Subject … shall acquire the status of her husband as State Subject of the same class as her Husband, so long as she resides in the State and does not leave the State for permanent residence outside the State.” This was widely interpreted to mean that a woman from the State who marries outside the State would automatically lose her status as a State subject. However, in October 2002, the full bench of J&K High Court, with one judge dissenting, held that the daughter of a permanent resident of the State would not lose her permanent resident status merely upon marrying a non-permanent resident, but would continue to enjoy all rights, including those pertaining to inheritance of property. However, this judgment may be subject to modification as the matter is sub-judice pending appeal in the Supreme Court.

Structure of Art. 35A

Added to the Constitution by the Constitution (Application to Jammu and Kashmir) Order, 1954 (a presidential order) on 14.05.1954, Art. 35A aims to protect the archaic system of affording special rights to a class of persons called the ‘permanent residents’ of the State of Jammu and Kashmir. It creates two classes of citizens within the eyes of the State (of Jammu and Kashmir), one that has special rights and privileges with regard to employment, acquisition of immoveable property, settlement and scholarships or aids in the State and another one which doesn’t. It protects all such laws that may have been in existence or are subsequently enacted conferring special rights upon these permanent residents from standing the scrutiny of the Constitution Courts of India. 

What makes this provision particularly discriminatory is that unlike domicile which can be acquired over a period of time, ‘permanent resident’ status is hereditary being linked to ancestry and therefore cannot be acquired. It is submitted that this Article is unconstitutional as it hits squarely at the fundamental and inalienable right of freedom from discrimination based on race or place of birth as enshrined within Article 15 of the Constitution of India. It is further submitted that Article 15 being a part and parcel of ‘basic structure’ of the constitution cannot be abrogated by Art. 35A. This Article in fact has been a constant impediment to the integration of the State with the Union of India and therefore goes against the principle of fraternity as clearly stipulated within the preamble to the Constitution of India by promoting regionalism which hinders the unity and poses as grave threat to the integrity of the nation. 

Implication of absence/repeal of Art.35A

It is often claimed by the proponents in favour of Art. 35A that it is bridge, which connects the state of Jammu and Kashmir and the rest of India, and not a wall. Let’s put this statement to the test. If indeed it is a bridge as claimed then surely the absence of such a bridge would mean the greater alienation of state of Jammu and Kashmir. Let’s for a moment suppose that such a bridge did not exist. What would have been the state of relations between the state of Jammu and Kashmir and the Union of India? 

Without Art. 35A, there would be no different class of citizens one being permanent residents and the other not being permanent residents. In the absence of this provision, all the citizens residing in the state shall be treated as equal in the eyes of the state. There shall be no discrimination by the State Government in employment and everyone shall be eligible to receive scholarship or other forms of aid whenever they are able to satisfy the other criterions for the same. There being no impediment to the settlement and acquisition of immoveable property within the State of Jammu and Kashmir, other citizens of India shall be able to freely relocate to the State ensuring cross-transmission of culture and greater integration of the state and its people with the Union of India and its other citizens. 

All this philosophical evidence as well as the geographical evidence that we are well aware of clearly indicates that obviously, Kashmir is not an island that may be surrounded by water on all sides and therefore must be connected with a bridge but rather is a valley separated from the mainland by a mountain like barrier that must be removed. Much in the same way that the Pir Panjal/Banihal Tunnels have physically connected the nation to the state, Art. 35A must be removed to emotionally and psychologically connect the state to the nation.

The Hon’ble Supreme Court has infact taken a step in that direction in its recent observations in the case of State Bank of India v. Santosh Gupta and Anr. (2017) 2 SCC 538 where it has categorically ruled as incorrect any description of Jammu and Kashmir as “being sovereign in the sense of its residents constituting a separate and distinct class in themselves.” In this regards the Hon’ble Supreme Court quite rightly chose to remind the Hon’ble High Court that the permanent residents of Jammu & Kashmir are first and foremost citizens of India and that unlike some other federal Constitutions, the Indian Constitution does not contemplate dual citizenship.

While overturning the Hon’ble High Court’s judgment, the apex court opined that “the High Court judgment begins from the wrong end and therefore reaches the wrong conclusion” in that it states that “the State has absolute sovereign power to legislate in respect of laws touching the rights of its permanent residents qua their immovable properties,” in terms of Section 5 of the Constitution of Jammu & Kashmir.

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 skill.

The post Repealing of Article 370, Art. 35A and  its implication in J&K and rest of India appeared first on iPleaders.

So today is the day! We are finally announcing the winner of our Blog Writing Competition of 5th week of October 2019 (From 28th October 2019 To 3rd November 2019) 

We’d like to say a big thanks to everyone for participating! It has been a great pleasure receiving your articles on a different legal topic, they were all amazing! 

And now we’d like to congratulate our top 5 contestants who become the undoubted winners. They will receive Prize money of Rs 2000, LawSikho store credits worth Rs. 1000 and a Certificate of Merit from team LawSikho.

They will also get an opportunity to intern at LawSikho under the direct mentorship of Ramanuj Mukherjee, Abhyuday Agarwal, Harsh Jain and Komal Shah. Their articles got published on iPleaders blog (India’s largest legal blog). Click here to see other perks available to them.

Their entries (see below) received maximum marks based on the average marks given by the panel of editors, and has been crowned the winners!

Meet our next 5 contestants who made it to top 10 here. They will receive a Certificate of Excellence from team LawSikho.

They will also get an opportunity to intern at LawSikho under the direct mentorship of Ramanuj Mukherjee, Abhyuday Agarwal, Harsh Jain and Komal Shah. Their articles got published on iPleaders blog (India’s largest legal blog). Click here to see other perks available to them.

Click here to see all of the contest entries. Click here to see our previous week’s winners.

Our panel of judges, which included editors of iPleaders blog and LawSikho team, choose the winning entry based on how well it exemplified the entry requirements.

The contestants have to claim their prize money by sending their account details at uzair@ipleaders.in within 1 month (30 days) of the date of declaration of results and not afterwards. Certificates will be sent on the email address given by the contestant while submitting the article. For any other queries feel free to contact Uzair at 8439572315 LawSikho credits can be claimed within three months from the date of declaration of the results (after which credits will expire).

Congratulations all the participants!

Regards,

Team LawSikho

The post Blog Competition Winner Announcement appeared first on iPleaders.

So today is the day! We are finally announcing the winner of our Blog Writing Competition of 1st week of November 2019 (From 4th November 2019 To 10th November 2019) 

We’d like to say a big thanks to everyone for participating! It has been a great pleasure receiving your articles on a different legal topic, they were all amazing! 

And now we’d like to congratulate our top 5 contestants who become the undoubted winners. They will receive Prize money of Rs 2000, LawSikho store credits worth Rs. 1000 and a Certificate of Merit from team LawSikho.

They will also get an opportunity to intern at LawSikho under the direct mentorship of Ramanuj Mukherjee, Abhyuday Agarwal, Harsh Jain and Komal Shah. Their articles got published on iPleaders blog (India’s largest legal blog). Click here to see other perks available to them.

Their entries (see below) received maximum marks based on the average marks given by the panel of editors, and has been crowned the winners!

Meet our next 5 contestants who made it to top 10 here. They will receive a Certificate of Excellence from team LawSikho.

They will also get an opportunity to intern at LawSikho under the direct mentorship of Ramanuj Mukherjee, Abhyuday Agarwal, Harsh Jain and Komal Shah. Their articles got published on iPleaders blog (India’s largest legal blog). Click here to see other perks available to them.

Click here to see all of the contest entries. Click here to see our previous week’s winners.

Our panel of judges, which included editors of iPleaders blog and LawSikho team, choose the winning entry based on how well it exemplified the entry requirements.

The contestants have to claim their prize money by sending their account details at uzair@ipleaders.in within 1 month (30 days) of the date of declaration of results and not afterwards. Certificates will be sent on the email address given by the contestant while submitting the article. For any other queries feel free to contact Uzair at 8439572315 LawSikho credits can be claimed within three months from the date of declaration of the results (after which credits will expire).

Congratulations all the participants!

Regards,

Team LawSikho

The post Blog Competition Winner Announcement appeared first on iPleaders.

This article is written by Shambhavi Tripathi, a 3rd-year student of LL.B. in Panjab University, Chandigarh. The article deals with the introduction to E-commerce, its types, pros and cons of E-commerce and issues related to E-commerce under cyber law.

Introduction

E-Commerce, also known as electronic commerce or internet commerce, is an activity of buying and selling goods or services over the internet or open networks. So, any kind of transaction (whether money, funds, or data) is considered as E-commerce. So, E-commerce can be defined in many ways, some define E-Commerce as buying and selling goods and services over the Internet, others define E-Commerce as retail sales to consumers for which the transaction takes place on open networks. The buying and selling of products, services, and digital products through the Internet all fall under the umbrella of e-commerce. 

Organisation for Economic Cooperation and Development (OECD) defines e-commerce as:

“All forms of transactions relating to commercial activities, including both organizations and individuals, which are based on the processing and transmission of digitized data including text, sound, and visual images.” According to this view, E-commerce does not necessarily require the use of the Internet. E-commerce includes all forms of transactions that process and transmit digitized data which includes text, sound and visual images.

E-commerce is the application of information technology and communication technology to three basic activities related to commercial business, the three basic activities are as follows: 

1. Production and support- which includes assisting production, distribution, and maintenance of goods and services.
2. Transaction preparation- which includes getting product information into the market-place and bringing buyers and sellers into contract with each other; and
3. Transaction completion- which includes concluding transactions, transferring payments, and securing financial services. 

Types of E-Commerce

E-commerce can be categorised into six categories:

1. Business-to-Business (B2B) – B2B e-commerce consists of all kinds of electronic transactions, dealings and business related to the goods and services that are conducted between two companies. This type of e-commerce exists between the producers of a product and the conventional wholesalers who advertise the product to consumers for purchase. So, in this kind of e-commerce the final consumer is not involved and the online transactions only involve the manufacturers, wholesalers, retailers etc.
2. Business-to-Consumer (B2C) – It is the most common form of e-commerce, and it deals with electronic business relationships between businesses and consumers. This kind of e-commerce allows consumers to shop around for the best prices, read customer reviews and find different products that they would not find otherwise in the retail world. This kind of e-commerce is related to the transactions and relationships between businesses and the end customers. Today, we find various online shopping sites and virtual stores on the internet, that sell thousands of products, ranging from computers, fashion items to medicines and other necessities.
3. Consumer-to-Consumer (C2C) – This level of e-commerce consists of all electronic transactions that take place between consumers. This consists of electronic transactions of goods and services between two customers and is mainly conducted through a third party that provides an online platform for these transactions. C2C e-commerce consists of sites where old items are bought and sold, such as OLX, Quickr etc. Generally, these payment transactions are provided by online platforms (such as PayTM, GooglePay etc), and are conducted through social media networks (such as Facebook, Instagram etc) and websites.
4. Consumer-to-Business (C2B) – In C2B e-commerce, a consumer or an individual makes their goods or services available online for companies to purchase, so, in this kind of e-commerce a complete reversal of the selling and buying process takes place. For example a graphic designer making a company site or logo or a photographer taking photos for an e-commerce website. This is very relevant for crowd-sourcing projects.
5. Business-to-Administration (B2A) – This e-commerce consists of electronic transactions that takes place companies and bodies of public administration such as government. Therefore, the B2A model is sometimes also referred to as B2G (Business-to-Government). Many processes are becoming optimized through digitalization because of that many administrations and governing bodies are implementing third-party technologies to assist in the process. This involves many services in various areas such as social security, fiscal measures, employment and legal documents.
6. Consumer-to-Administration (C2A) – This e-commerce consists of electronic transactions that takes place between people and bodies of public administration. This relationship allows access for consumers to receive information, make payments, and establish direct communication between the government or administrations and the consumers. Many common C2A transactions may include paying taxes, fines, or paying tuition to a University. 

The main objective of both the B2A and C2A types of eCommerce is to increase flexibility, efficiency, and transparency in public administration.

Important Issues in Global E-commerce

1. Issue relating to Privacy- The increase of electronic transactions over the internet raises various concerns on the collection, storing and manipulation of personal information without the consent or knowledge of consumers. The functioning of E-Commerce is highly connected and dependent upon the collection and storing of personal information of consumers to provide them with the products and services and maintain their data. Therefore, there is a chance that without the consent or knowledge of consumers, personal information may be shared with or sold to others. Because of these concerns the protection of privacy has become one of the most important policy issues among policy-makers, businesses and consumers. 
2. Issue relating to Security- E-Commerce security can be defined as “a protection of an information resource from the threats and risks in the confidentiality, authenticity and integrity of the electronic transactions transmitted via a network”. The e-commerce can only grow if the system is capable of providing the same level of trust and security which is found in traditional methods of business. This can be achieved only if consumers of e-commerce are confident of the security provided by the concerned e-commerce. 
3. Issue relating to Consumer Protection– The consumers must be sure that they are as protected in the electronic marketplace as they are in the real marketplace. There are many consumer protection issues related to electronic transactions such as card information, bank information, etc. Therefore, it becomes important that confidential information such as credit/ debit card information, bank account number etc. are kept protected. Earlier, it used to be difficult for a consumer to verify the authentication and security information in an online atmosphere, but with the introduction of digital signature it has become easy and safe.
4. Issue relating to Content Regulation- There is certain types of online transmissions that are deemed inappropriate, offensive or harmful to certain segments of consumers and users of E-Commerce. Adult materials, bullying, terrorism, hate speech against minors and sedition are some examples of those activities that raise public concerns. And those who are concerned about these harmful or inappropriate Internet contents advocate for regulatory intervention and content regulation by government and concerned organizations. This is an issue for policy makers and concerned companies. However, the counter argument for such content regulation and intervention is on the ground of right to speech and expression. This problem should be solved without affecting the functioning and growth of e-commerce.
5. Issues relating to Access: The following are the main issues related to access to e-commerce:

Access to infrastructure- In order to conduct commercial transactions over the Internet, consumers need to have access to telecommunications networks and services. 

Access to content- In e-commerce, the kind and amount of content transmitted over this infrastructure is also one of the critical elements for the growth of e-commerce. The contents have to be competitive, respecting the cultural values of others, and not inappropriate or harmful to others.

Universal access- With the increasing importance and involvement of Information and Communication Technologies in our everyday lives, universal availability of various communication services, has become a necessity for both consumers and companies of e-commerce. A large number of people are still living without the basic telephone services. This gap related to technology and digitization in the world population is called as digital divide. The digital divide affects the people’s capacity to access modern Information and Communication Technologies, which in turn impedes their capacity to access the Internet and e-commerce, which ultimately daunts the growth of e-commerce.

Language and localization: With e-commerce extending to other boundaries, language and localization becomes an issue because it becomes difficult to communicate with a native speaker of any particular country. 

Pros of E-Commerce

E-commerce is an advanced way of conducting businesses online and across the borders and because of that it has various advantages to it: 

1. Its reach is across the global market and with minimum investments. 
2. It enables sellers to sell their products on a global level and allows customers to make a broader choice. Now sellers and buyers can meet in the virtual world, without the barrier of borders.
3. E-commerce process reduces the product distribution chain to a considerable extent. 
4. It helps in making a direct and transparent business and transaction channel between the producers, wholesalers and final customers. 
5. It provides quick delivery of goods and customer complaints are also addressed quickly. It also saves time, energy and effort for both the consumers and the company.
6. E-commerce leads to increased productivity and better service as it brings sellers and customers closer. 
7. The customer can choose between different sellers. 
8. Customers now have access to virtual stores all the time.
9. E-Commerce leads to considerable cost reduction of goods and services. Transaction costs are also reduced in E-commerce and due to that customers get to buy products at a comparatively lower rate.

Cons of E-Commerce

However, along with advantages, E-commerce has certain disadvantages too, such as:

1. Its dependence on network connectivity and information technology.
2. There aren’t definite legislations both domestically and internationally to regulate e-commerce transactions.
3. There can be a loss of the privacy of the customer.
4. Security is another issue. Issues like credit card theft, identity theft, etc. are some of the security related concerns.
5. There can be fraudulent financial transactions on online platform.
6. The costs of opening the e-commerce portal and maintaining it are very high. The setup of the hardware and the software, the training cost of employees and the constant maintenance are all expensive.

Conclusion

E-commerce is an ever developing area. With the advancement in technology and communication, e-commerce has also gained popularity among the people of India and worldwide. It has made e-business easy and accessible to people sitting at home. E-commerce has a huge impact on costs, access to goods and services and increased productivity of businesses. It also plays an important role in the economic growth and development of a nation. Though it is a relatively new area belonging to the era of the internet, it has the potential to change and replace the traditional form of business and trade activities. 

However, Indian e-commerce still faces many difficulties in web marketing because of infrastructural difficulties, limited access and computer illiteracy. Majority of the Indian population lives in rural areas and they do not have sufficient knowledge about computers and the internet. Some customers even in urban areas do not have sufficient facilities and knowledge of online transactions and payments, therefore, this activity of buying and selling of goods online is limited to certain people who are equipped with the knowledge of computer and internet. However, with the government initiatives like Digital India, this scenario has changed a lot in the last decade and India is becoming a huge platform for e-commerce.

References

• Abdul Gaffar Khan: Electronic Commerce: A Study on Benefits and Challenges in an Emerging Economy; Global Journal of Management and Business Research: B Economics and Commerce; Vol. 16; Issue 1; 2016
• Rajneesh Shahjee: The Impact of Electronic Commerce on Business Organization; Scholarly Research Journal for Interdisciplinary Studies; Vol.4/27, 2016
• Important Issues In Global E Commerce Information Technology Essay; UKEssays; Dated: 05.12.2016; Date of Access: 20.10.2019<https://www.ukessays.com/essays/information-technology/important-issues-in-global-e-commerce-information-technology-essay.php>

• What are the different categories of E-Commerce by Alex Wilks; Numinix; Dated: 05.11.2018; Date of Access: 20.10.2019 <https://www.numinix.com/blog/2018/11/05/what-are-the-different-categories-of-e-commerce/>

• Types of eCommerce Business Models, Pros, and Cons by Puneet Bhalla; Shiprocket360; Dated: 08.08.2018; Date of Access: 20.10.2019 < https://360.shiprocket.in/blog/ecommerce-business-models-types-pros-cons/>

• The Different Types of e-Commerce by Jack D’Errico; Trellis; Dated: 26.02.2019; Date of Access: 21.10.2019 < https://trellis.co/blog/the-different-types-of-e-commerce/>
• Understanding the challenges in cross-border ecommerce; PitneyBowes; Date of Access: 21.10.2019 <https://www.pitneybowes.com/uk/global-ecommerce/case-studies/the-challenges-of-cross-border-ecommerce.html>
• Emerging trends in business: Electronic Commerce; Toppr; Date of Access: 21.10.2019 < https://www.toppr.com/guides/business-environment/emerging-trends-in-business/electronic-commerce/>
• International Ecommerce Issues: How to Diagnose Global Barriers with Analytics by Edin Šabanović; Date of Access: 21.10.2019 < https://www.shopify.com/enterprise/international-ecommerce-issues>

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 skill.

The post Introduction to E-commerce : An ultimate guide appeared first on iPleaders.

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

The simple answer is: the habit gap. 

When I created a habit of filling the satisfaction void in my life with eating delicious food, that led to my putting on a lot of weight and becoming obese. 

When I created a habit of eating moderately and fasting regularly, that led to rapid weight loss. 

When I created a habit of working out after waking up every day, that led to a transformation of my physique. 

When I created a habit of noting down new words and looking them up on the dictionary and then making a funny sentence with them and write them down, I developed a very good vocabulary. 

When I made it a habit to spend 10 hours a day studying for an exam for close to a year, I topped it. 

When I developed a habit of meditating every morning, my concentration and focus became very sharp, which helped me to study for 10 hours in a focused manner in the first place. 

When I made it a habit to call one potential client a day and speak on phone about their business for half an hour every day, learning more about the challenges they are facing in the course of their business, I was able to come up with products and services that I could earn crores of rupees from, and built several successful businesses.

When I developed a habit of doing a deep dive with my colleagues about what they are working on and what they should be focusing on a weekly basis, the performance of my entire team was elevated within a few months to an altogether different realm. 

What if you looked at every challenge and goal in your life in terms of a challenge of building a new useful habit, or discarding bad habits?

What are the accomplishments you are looking forward to? What are the greatest challenges in your life? What are the problems you really need to address?

If you wanted to create certain habits to deal with those challenges, goals or problems, what habits would you want to develop?

Click Above

It is not a one time process either. There are always new habits we need to learn, and old ones we need to unlearn, because what did very well in the past may stop serving us tomorrow.

I recently began to use Twitter a lot. I noticed a few days back that I am spending a lot of my productive time reading through twitter feed and even engaging with others who respond to my tweets. 

It is great at some level. I am building better engagement on twitter. 

However, when I looked at it from the macro perspective, it is a horrible investment of my time when I open twitter first thing in the morning and begin to outrage about some injustice or post some witty lines about what happened yesterday, when I could spend that time writing for my community or picking up the phone and talking to paying customers or working with my colleagues on building the next product or technology that can help my business to grow. 

Instead, I want to build a habit of spending my mornings writing, exercising and meditating. That means I need to stop going into the rabbit hole of my phone first thing in the morning.

I have been trying to figure this one out for the last few days. One thing I have finally found is an app. It is an advanced blocker. I paid for the premium version, and it is allowing me to set daily time limits for specific apps. 

One thing I did was to block off all distracting social media, communication and entertainment apps between 1130 at night and 1 pm in the morning. This includes WhatsApp.

Now I have little choice but to open my computer, even if it is to check WhatsApp. This increases the likelihood of me opening up my word processor and beginning to work on my several unfinished writing projects, the next book, or the next email. 

This also solves a great problem, of not sleeping on time. When I have no phone to distract me with, I have a really high chance of sleeping on time. 

So what are the habits you need to build, and what goals will they help you to achieve?

Would you respond and share? Writing down this list may be the best thing you can do before 2019 is over, and working on building those habits could lead to some crazy breakthroughs. 

Here is a one time opportunity. Want me to personally coach you on how to build habits that can help you to achieve your goals?

Respond to this mail with what habits you think you should develop or discard, and what goals that would help you to achieve. I will pick the 10 best answers and personally have a call with you to help you develop a plan on how to make sure you stick to those habits.

Looking forward to your ideas!

Tomorrow I will tell you about 10 powerful habits every lawyer should try to build, so keep an eye on this space.  

Here are the courses for which enrollment closes in two days:  

DIPLOMA

Diploma in Entrepreneurship Administration and Business Laws

Diploma in Companies Act, Corporate Governance and SEBI Regulations

EXECUTIVE CERTIFICATE COURSES

Certificate Course in Advanced Corporate Taxation

Certificate Course in Arbitration: Strategy, Procedure and Drafting

Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting

Certificate Course in Trademark Licensing, Prosecution and Litigation

Certificate Course in National Company Law Tribunal (NCLT) Litigation

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 skill.

The post Why are you not more successful already appeared first on iPleaders.

This article has been written by Kajal Kumari studying in Galgotias University, Greater Noida.

Introduction

Supreme Court of India declared 158 year old adultery law as unconstitutional. The term “Adultery” is derived from a latin word ‘Adulterium’ which means sexual intercourse with a person other than one’s own spouse. Generally adultery means consensual sexual intercourse with the wife of another man.The act which indulge in any type of consensual sexual relationship between a married person and a person who is not their spouse is known as adultery. Five judge bench of Supreme Court of India struck down the section 497 of Indian Penal Code, 1860 along with 198(2) of the Criminal Procedure Code, 1973 as unconstitutional. Section 497 of the Indian Penal Code,1860 dealt with adultery and Section 198 of the Criminal Procedure Code, 1973 deals with prosecution for offences against marriage

What was the adultery law in India

Adultery law was defined under section 497 of the Indian Penal Code, 1860 which stated “whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery”.

Punishment was given under this section (section 497 of the Indian Penal Code, 1860) which may extend to imprisonment of five year, or with fine, or with both. Under this section wife was not punishable even as an abettor.

Essential ingredients of section 497 of the Indian Penal Code, 1860:-

• Person must committed sexual intercourse with the wife of another man;
• The person must have knowledge or has reason to believe that the woman is another man’s wife;
• Husband has not given consent or connivance for sexual intercourse;
• Such sexual intercourse not amount to offence of rape;
• Woman’s consent or willingness is not excuse to the crime of adultery.

As per section 198 of the Criminal Procedure Code, 1973, no Court shall take cognizance of the offence (adultery) under this section except upon a complaint made by the husband of the woman or in absence of husband if another person who had care of such woman on the behalf of the husband then such person made with the leave of the court if the adultery was committed at that time.

Under section 497 of the Indian Penal Code, 1860 woman was not considered even as an abettor and probably the rational behind not punishing the woman was that patriarchal perspective of seeing the woman as she is the property of the husband and also there was no remedy available to the wife if her husband commits adultery because this section (section 497 of the Indian Penal Code, 1860) only talks about punishing the other man who has sexual relationship with his wife, only one remedy is available to the wife that is divorce. In Yusuf Abdul Aziz v/s. State of Bombay, 1954, it was held that section 497 of the Indian Penal Code, 1860 is valid and the classification is given on the basis of gender is reasonable and also State can make special provision for women and children under article 15(3) of the Constitution of India and that is why it is not unconstitutional.

Under section 497 of the Indian Penal Code, 1860, prosecution was difficult because:-

• It is a private matter and not public matter;

• There must be clear proof of adultery;
• This is based on circumstantial evidence.

The offence of adultery is non-cognizable ( without arrest warrant a police officer cannot arrest the accused) and it is also a bailable offence. It is also a compoundable offence, compoundable by husband against whom adultery is committed.

As per section 198(2) of the Criminal Procedure Code, 1973, only husband is allowed to bring charge against the person who commits adultery with his wife but under this section wife is not allowed to bring charge if his husband commits adultery with another woman.

Adultery at present is no more a criminal offence in India

In Joseph Shine v/s. Union of India, 2018, five judge bench struck down the section 497 of the Indian Penal Code, 1860 along with section 198(2) of the Criminal Procedure Code, 1973 as unconstitutional.

In Joseph Shine v/s. Union of India, On October 2017, Joseph Shine, a non – resident Keralite, filed Public Interest Litigation under article 32 of the Constitution of India. The petition challenged the constitutionality of the offence of adultery under section 497 of the Indian Penal Code, 1860 along with section 198(2) of the Criminal Procedure Code, 1973.

Section 497 of the Indian Penal Code, 1860 criminalised adultery by imposing punishment to the person who commits sexual intercourse with the wife of another person without that person’s consent or connivance.

Section 198(2) of the Criminal Procedure Code, 1973 dealt with how a complainant can file charges for offence committed under sections 497 and 498 of the Indian Penal Code,1860.

Issues:

1. Whether section 497 of the Indian Penal Code, 1860 is unconstitutional being arbitrary and violative of fundamental rights ?
2. Whether section 198(2) of the Criminal Procedure Code, 1973 is unconstitutional and violative of fundamental rights ?

On 27/07/2018, a five judge bench of the Supreme Court of India unanimously struck down section 497 of the Indian Penal Code, 1860 along with the section 198(2) of the Criminal Procedure Code, 1973 as being violative of articles 14,15,21 of the Constitution of India.

Explanation of Supreme Court of India’s verdict in case Joseph Shine v/s. Union of India

A five judge bench of Supreme Court headed by the Chief Justice of India Deepak Mishra declared section 497 of the Indian Penal Code, 1860 which criminalise adultery is unconstitutional and struck down the penal provision.

The bench comprising of Chief Justice Deepak Mishra, Justice R.F. Nariman, Justice D.Y. Chandrachud, Justice A.M. Khanwilkar and Justice Indu Malhotra held that section 497 of the Indian Penal Code, 1860 is unconstitutional. The Chief Justice of India Deepak Mishra and Justice Khanwilkar said “we declare section 497 of the Indian Penal Code, 1860 and section 198(2) of the Criminal Procedure Code,1973 dealing with prosecution of offences against marriage as unconstitutional. 

Supreme Court of India said that we are striking down section 497 of the Indian Penal Code, 1860 because of its manifest arbitrariness. As article 14 of the Constitution of India deals with right to equality and section 497 of the Indian Penal Code, 1860 only penalise men and not women, it is manifestly arbitrary and such it is unconstitutional. As article 21 of the Constitution of India deals with protection of life and personal liberty and section 497 of the Indian Penal Code, 1860 treats woman as personal property of the husband since it goes against the dignity of the woman as such it is unconstitutional. Article 15(1) of the Constitution of India prohibits the State from discriminating on grounds only of sex. The offence of adultery only considered husband as aggrieved party if his wife commits sexual intercourse with another man but the adultery law not considered wife as an aggrieved party if her husband commits sexual intercourse with another woman. The provision is discriminatory and therefore, violative of article 15(1) of the Constitution of India.

Chief Justice Deepak Mishra said “husband is not the master of wife”. He observed that “any system treating a woman with indignity invites the wrath of the Constitution that is why adultery is no longer a crime.

Justice R.F. Nariman said “ancient notions of man being perpetrator and woman being victim no longer hold good”. Under adultery law, only a man is convicted but woman is not convicted, clearly it goes against article 14 of the Constitution of India, also against article 15 of the Constitution of India which says no discrimination on ground of sex so it is discrimination against man.

Justice D.Y. Chandrachud said “control sexuality of woman hits the autonomy and dignity of woman”. When husband and wife marry, wife has not given up on her sexual freedom on her sexuality, she can also explore sexuality outside the marriage as well, since at the time of marriage or even afterwards the wife does not loose her freedom, her control over her sexuality, and section 497 of the Indian Penal Code, 1860, deprives a woman over her sexuality of her sexual freedom it goes against the concept of privacy and dignity under article 21 of the Constitution of India.

Justice Indu Malhotra said that it can be moral wrong but this case is decided by husband and wife together, it can be a civil case and can not be a crime.

Adultery is used as ground for divorce

In marital law, adultery has recognised meaning and adultery is reasonable ground for getting divorce which means if one party commits adultery then it is sufficient ground for applying for divorce. Adulterous relationship is established when a person commits sexual intercourse with the spouse of other which means two individual commits sexual intercourse who are not married to each other. Since it is voluntary relationship so it can also be termed as cheating, extra marital affair. In marriage, morality plays a very important role which means both husband and wife shall remain loyal to each other but when one partner establish adulterous relationship with other person then it means who establish relationship with other is not loyal towards his/her spouse.

After divorce, life become more difficult so before applying for getting divorce one must think consequence of getting divorce and life after getting divorce. In country like India divorce is still not accepted by the family of the person which means it still carries social stigma and if the woman is divorced by her husband then the life of woman is more difficult for her if compared with her husband. In India, most of the woman is not able to survive herself financially. If the separating couple has kids then the kids are the one who suffers the most so it is better to forgive their spouse instead of dragging him/her in court if the one who commits adultery confront in the front of other the partner.

Laws of adultery in other country

Adultery laws varies from country to country because it depends upon the religious norms and attitude of the people.

In U.S.A., those person who commits sexual intercourse with other than their spouse then such person is held liable for adultery which means if husband commits sexual intercourse with other woman then he is held liable and if wife commits sexual intercourse with other man then she is also held liable.

In U.K., adultery is not a criminal offence.

In France, if wife commits sexual intercourse with person other than her husband then wife is held liable for adultery and the period for punishment of adultery is from 3 months to 2 years of imprisonment. The husband however may pat to end her sentence by forgiving her and agree to take her back.

In Pakistan, both man and woman is held guilty if they commits adultery and punishment may extend to death sentence.

Conclusion

In India, extra – marital sex is not a criminal offence any-more. Adultery is a civil wrong as it deals with the disputes between two individuals. Criminal wrong is offence against state/society, they have potential to destabilize the society. Court observed that section 496 of the Indian Penal Code, 1860, is arbitrary, women can not be held captive by social expectations, wife is not the property of the husband, it (section 497 of the Indian Penal Code, 1860) is against articles 14, 15 and 21 of the Constitution of India. As per article 21 of the Constitution of India, everyone is guaranteed dignity and personal liberty, but by making adultery a criminal offence, individual would be deprived of dignity and privacy. But the judgement of the Court may raise many questions, in India there are many laws which deny these rights such as restitution of conjugal rights, marital rape. Therefore, decriminalisation of section 497 of the Indian Penal Code, 1860 may have a ripple effect. It can be viewed as something which places a reasonable restriction, which means that there are valid limitation on sexual autonomy.

The post Decriminalisation of Adultery appeared first on iPleaders.

This article is written by Shreyak Patnaik, a third-year student pursuing B.A LL.B from Symbiosis Law School, Hyderabad. This article deal with the Consumer Protection Act, 2019, the changes the act has gone through, the relevant authorities and important cases to keep in mind. 

Introduction

You’re a consumer. No, it’s not a conditional statement. If you are reading this article on the Ipleaders blog. You are a consumer. You have purchased a phone, a computer or whatever device you are viewing this on, you have bought an internet connection and have paid for the electricity which is charging the device you are using to read this article. You are a part of the society, and therefore are also a consumer of the market that inherently exists in modern society. Humans are not self-sustainable, they rely on each other which forms the basis of society, and with society, there also exists a market: A commonplace for individuals to trade their commodities and buy other individual’s commodities and services. So being a part of that system, makes you a consumer. Now, as a consumer, you are entitled to certain rights when you purchase something from the market, much like any other individual living in society being entitled to societal rights.

So, as an individual of the society, the way you are aware that you can’t be murdered or can’t have your purse stolen from you at gunpoint. Similarly, a consumer, you must also be aware of certain rights you are entitled to, as a participant of the market.

Definition of consumer

I told you that you’re a consumer. But that’s not enough, is it? When are you a customer? What brings you within the ambit of a customer? The answer lies in The Consumer Protection Act, 2019. Any problems you have as a consumer and all the rights that you are entitled to as a consumer along with how to go about the procedure in case any of those rights are violated are all mentioned in this Act. So who is a consumer? 

Under section 2(7) of the Act, it is stated that consumer is anyone who:

 (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or 

(ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first-mentioned person, but does not include a person who avails of such service for any commercial purpose.

If you have bought any goods or hired any service whatsoever for any consideration or with a promise to pay consideration or with an arrangement which allows you to pay in instalment (think: EMI), or are using goods or availing services hired by someone else but with their permission, then you’re a consumer of the good or service. 

Definition of deficiency in service

Deficiency, within the meaning of the Act, is always of service. So, problems in the goods purchased are defects and defects in services availed is labelled as a deficiency. Deficiency is defined in the Act under section 2(11): 

“deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes:

 (i) any act of negligence or omission or commission by such person which causes loss or injury to the consumer; and 

(ii) deliberate withholding of relevant information by such person to the consumer; 

So for example, if you have hired a mechanic to refill your bike’s mobile oil and he negligently uses petrol instead of mobile oil, that will be called a deficiency in service. Basically, if you face a loss directly because of the acts of the individual whose service you hired, then it can be labelled a deficiency in service. 

Consumer protection redressal agencies

To protect consumer rights, the Act mentions the establishment of three redressal mechanisms wherein the consumers can approach to address their grievances. 

District Commission 

This the lowest rung in the redressal commissions that consumers can approach. The State Government, under section 28(1) establishes at least one district consumer dispute redressal commission in every district of the state. If the government deems fit, it can even establish more than one district commission in a district. Every district commission needs to have a minimum of one president and two members but can have more members after discussing it with the Central government. If your redressal value is 1 crore or less than that, then you can approach the district commission. 

Who can file a complaint at the district commission? 

The following people can file a complaint at the commission under section 35(1) of the Act:

• The consumer

i) To whom such goods are delivered, or sold or agreed to be sold or such service which has been provided or has been agreed to be provided.

ii) Who alleges unfair trade practises in respect of such goods. 

• Consumer Association

Any voluntary consumer association registered under the law. It doesn’t matter if the consumer is part of such association or not. 

• One or more consumers appearing on behalf of all consumers with a common interest

These consumers would first need to get permission from the District Commission to proceed with the complaint in such a manner. 

• The Central Government, The State Government or the Central Authority as the case might be 

Under Section 34(2), a complaint can be filed at the District Court under within whose local limits: 

• • The opposite party or each of the opposition parties, in case there are more than one, normally reside, or carry on business, or have a branch or personally work for gain. 
• Any of the opposite parties ordinarily reside, or carry on business, or personally work for gain. Provided, the permission of the district commission is taken. 
• Where the cause of action wholly or partly arises. 
• Where the complainant resides or personally works for gain. 

On filing the complaint, it is necessary for the Commission to admit or reject the complaint within 21 days of receiving the complaint. It is legally prohibited under Section 36 for the commission to reject a complaint without first hearing the complainant. It is also necessary for every proceeding to be presided by the President and one member at least. Where the member who has been sitting for a particular proceeding is absent, the proceeding can be resumed with another method. 

Once the complaint is admitted, the commission must:

1. Refer a copy of the complaint, within 21 days of the complaint being admitted, to the opposite party and direct it to give its version of the story within 30 days or the extended period granted by the commission. 
2. If the opposite party disputes the allegation or fails and omits to take any action regarding the complaint, then district commission must deal with it in the following ways. 
3. Must seal the allegedly defective goods, and send them to the appropriate laboratory after authenticating it in the manner required. It must direct the laboratory to find if there is any genuine fault with the goods and report its findings to the commission within 45 days or how much ever time granted by the commission.
4. Before the goods go to the library, the complainant must be directed to deposit the sum of money required for testing in the credit of the commission. 
5. If any of the parties dispute the correctness of the finding of the laboratory, then the parties must be directed to submit their objections in writing to the commission.
6. Give a reasonable opportunity to the opposite party or the initiating party to be heard regarding their objections. 

If the above-mentioned procedure can’t be followed due to the lack of goods to take a sample from or if the defect alleged is in the service of the opposite party. Then the commission shall settle the dispute: 

1. On the basis of evidence provided by the complainant or the opposite party if the opposite party disputes the allegation. 
2. Take an ex parte decision if the opposite party omits to do anything regarding the allegations. 
3. Decide the case on its merits if the complainant fails to show up for the hearing. 

If it’s inconvenient for the party to show up to the commission in person, you can submit an application for hearing or examination of parties through video conferencing and if the district commission agrees with the reasons then it may allow so after recording the reason. 

The commission must deal with the case as expeditiously as possible and endeavour must be done to dispose of the case within three months if no analysis or testing is required and five months if analysis and testing are required. 

The District commission has the same power as the district court under this act.

If a party is aggrieved by the order of the district commission then they may prefer an appeal to the State Commission within 45 days of receiving such order. Even though the State Commission may entertain the plea after 45 days if sufficient reason is given by the party. 

The State Commission shall not hear the appeal of the party if the party has to pay a certain amount ordered to be paid by the District Commission. Minimum 50% of the amount must be paid before the State Commission will hear the appeal.

State Commission 

The State government establishes a State commission, under section 42(1) of the Act, in the state through the notification and can even establish regional branches if it seems fit. Each State Commission shall consist of one President and no less than four members and a maximum of as many members as is required. 

According to section 47, the State Commission has the jurisdiction to entertain:

(i) complaints where the value of the goods or services paid as consideration, exceeds rupees one crore but does not exceed rupees ten crores: 

Provided that where the Central Government deems it necessary so to do, it may prescribe such other value, as it deems fit; 

(ii) complaints against unfair contracts, where the value of goods or services paid as consideration does not exceed ten crore rupees; 

(iii) appeals against the orders of any District Commission within the State;

Apart from that, it also has the jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Commission within the State, where it appears to the State Commission that such District Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity. 

A bench of the State Commission must consist of a President and one member or more if the president deems it fit. 

The State Commission also has the power to shift proceedings from one district commission to another under section 48. The State Commission can do that on its own cognizance or through an application filed by the parties. But it must be to serve the purpose of justice. 

State Commission disposes of the case in the exact same method as the District Commission and also holds the power to review its own cases. 

If aggrieved by the decision, the aggrieved party may prefer an appeal to the National Commission within 30 days of receiving the order from the state commission. If sufficient reason is shown then the national commission can also entertain the plea after the thirty days. 

The national commission shall not listen to an appeal if the person who has to pay a particular amount from the order of the state commission, has not paid at least 50% of the amount ordered to be paid.

The appeal must be dealt with expeditiously and endeavours must be made to dispose of the appeal within 90 days from its date of admission.

National Commission 

Under Section 53(1), the Central Government establishes a National commission through notification. The main National Commission operates on the national capital region but the Central government can establish regional branches through notification. The National Commission must have one president and at least 4 members with the maximum being whatever is prescribed by the national government. 

The National Commission has jurisdiction, under section 58 of the Act: 

(a) to entertain:

(i) complaints where the value of the goods or services paid as consideration exceeds rupees ten crores: Provided that where the Central Government deems it necessary so to do, it may prescribe such other value, as it deems fit; 

(ii) complaints against unfair contracts, where the value of goods or services paid as consideration exceeds ten crore rupees; 

(iii) appeals against the orders of any State Commission; 

(iv) appeals against the orders of the Central Authority; and 

(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. 

A bench in the National Commission must at least consist of the President and one member but there can be more members if the President deems it fit.

The National Commission disposes of a case in the same manner as the district commission and also reserves the right to review its cases suo moto or based on an application filed by one of the parties.

Section 65(1) also states

All notices, required by this Act to be served, shall be served by delivering or transmitting a copy thereof by registered post acknowledgment due addressed to opposite party against whom complaint is made or to the complainant by speed post or by such courier service, approved by the District Commission, the State Commission or the National Commission, as the case may be, or by any other mode of transmission of documents including electronic means:

If the postal delivery guy acknowledges that the post was refused by the party then the commission must acknowledge the party as duly served under 65(2).

If aggrieved by the decision then an appeal does lie to the Supreme Court if made within thirty days of receiving the order.

Administrative control

Section 70 of the act states that the national commission shall lay down regulations for the State Commission after consultation with the Central government, for the better protection of the consumers and for that purpose must also have administrative control over all state commissions in the following matters: 

a) monitoring performance of the State Commissions in terms of their disposal by calling for periodical returns regarding the institution, disposal and pendency of cases; 

(b) investigating into any allegations against the President and members of a State Commission and submitting inquiry report to the State Government concerned along with copy endorsed to the Central Government for necessary action; 

(c) issuance of instructions regarding the adoption of uniform procedure in the hearing of matters, prior service of copies of documents produced by one party to the opposite parties, furnishing of the English translation of judgments written in any language, speedy grant of copies of documents;

(d) Overseeing the functioning of the State Commission or the District Commission either by way of inspection or by any other means, as the National Commission may like to order from time to time, to ensure that the objects and purposes of the Act are best served and the standards set by the National Commission are implemented without interfering with their quasi-judicial freedom.

There shall be a monitoring cell instituted by the president of the national commission and the State Commission shall also have the same administrative control over the district commission. 

Section 71 of the Act also states that every decision of the commission must be enforced in the same way as a decree made by the court under Order XXI of the first schedule of the Civil procedure code. 

Section 72 lays down the punishment on the disobedience of commission orders:

Whoever fails to comply with any order made by the District Commission or the State Commission or the National Commission, as the case may be, shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty-five thousand rupees, but which may extend to one lakh rupees, or with both. 

The section further grants the commissions the same power as a judicial magistrate first class under the Code of Criminal Procedure.

Comparative Analysis of Consumer Protection Act: 1986 and 2019

The amendment of 2019 to the Consumer Protection Act came after thirty-three years of the act being passed. Technology has progressed a lot in these years and while the older act tried to keep updated with small amendments here and there. The repeal of the older act and the establishment of the 2019 act was much needed. So what’s new in the Consumer Protection Act, 2019?

First and foremost, while there have been judicial pronouncements bringing the purchases made through online methods under the ambit of consumers. The 2019 Act explicitly includes the consumer who purchases goods or services online. Apart from the inclusion of online purchases the act has also made endorsers answerable regarding false or misleading advertisements. In the 1986 act, the onus of that was only on the manufacturers and the service providers. Under section 21(2) of the 2019 Act, the commission could even levy a fine of fifty lakhs of the endorser continues to advertise false information about the products even after getting a notice issued by the consumer. Misleading advertisements are also under the ambit of ‘Unfair Trade Practices’ in the new act. Disclosure of personal information given in the course of the transaction is also considered an offence under the act. The Act also proposes provision for product liability wherein the manufacturer not only has to compensate for the defective goods but also has to compensate for any loss or injury inflicted on the complainant due to the defect. So for example, if a bike is sold to you and the break is loose and you have an accident as a result, the manufacturer has to compensate for the defect and also compensate you for the accident which you faced because of the defect.

It’s not just the offence though, the redressal agencies have also gone through changes under the new Act. While the 1986 act did stipulate for the commissions to either accept or reject a complaint within 21 days of receiving it, the 2019 act has gone a step further and stated that if no action has been taken within 21 days then the complaint is to be assumed to be admitted. The pecuniary jurisdiction of the district commission has also been raised to ease the burden of the state and national commissions. You can apply to the district commission now if the value of your case is within 1 crore. You don’t even need to file the complaint at the residence of the opposite party. It can be filed where you reside or where the cause of action arose as well. The commissions also have the power to review their cases now and can also refer cases to mediation with the consent of both the parties.

The act also proposes for the establishment of an independent regulator: Central Consumer Protection Authority (CCPA). While this authority won’t be listening to consumer grievances or settling disputes, it will be taking administrative steps such as imposing liabilities to address any unfair trade practises etc. It’s essentially another body to ensure a stronger presence of consumer rights in the country.

Cases on Consumer Protection Act

Class Action Suit under The Consumer Protection Act

In the case of Ambrish Kumar Shukla & 21 others. v. Ferrous Infrastructure Pvt. Ltd., the national commission had the question of the legitimacy of class action suit posed in front of it. The respondents in the case argued that even if the interest is similar, with multiple causes of action, the provisions of 13(6) will not be binding on the case and therefore a class action suits with multiple consumers cannot be entertained since the consumers only really care about their cases which were different in relief and therefore it cannot be considered to be the same interest. The National Commission rejected this argument stating, while placing reliance on the rationale of the Supreme Court bench in the case of Chairman, Tamil Nadu Housing Board, Madras vs. T.N Ganapathy, that provision of 13(6), which allowed Rule 8 Order 1 of the Civil Procedure Code apply to class-action suits in consumer disputes, and of 12(1)(c) were to facilitate decisions where a large number of consumers were interested without recourse to each of them filing an individual complaint. The Commission said that the intention of the legislation must be looked at the interpretation accordingly must be done to subserve the intention of the legislation. 

The intention of class action suits stipulated in Rule 8 Order 1 and by way of that, 13(6) and 12(1)(c), was to avoid multiplicity of proceedings and therefore in deciding if a class action suit can be bought it is that particular intention which has to be kept in mind. The commission stated that mere difference in the cause of action among the different relief seekers will not be a bar from a class action suit if the nature of the interest asked by all of them is the same. The commission took the example of a builder defaulting in giving the flats to the residents even after getting paid.

The residents could have different flats such as 2BHKs and 4BHKs and 1BHKs and therefore will have different reliefs but they all share the same interest of either getting damages from the builder or getting possession of their flats and therefore can join together to institute a single suit against the builder. Now, the other side to it is that the consumers don’t have the option to only include only some of the aggrieved consumers in the complaint. On instituting a class action suit, it is the court’s responsibility to give notice to all consumers interested in the case to join the suit. The cost of serving notice to all the interested parties will be done at the expense of the person who instituted the suit. Moreover, if the person who instituted the suit has not done due diligence and is unaware of the case facts, the commission can substitute the instituting consumers with another interested consumer from the complaint. 

How can a commission decide the pecuniary jurisdiction? 

One more question which was posed in front of the commission was regarding the grounds on which the pecuniary jurisdiction of the commission is to be decided. The commission stated that in deciding the pecuniary jurisdiction the aggregated prices of the good and the compensation claimed must be taken into consideration and if its a class action suit then the aggregate prices of all the goods involved and the total compensation claimed must be taken into consideration in deciding the pecuniary jurisdiction of the commission. Further clarifying, the commission also cleared the question regarding whether the market value of the goods is to be considered or the price at which the goods were purchased by the consumer. The commission stated that the price was paid to be purchased by the consumer must be the price that is considered.

While this decision did come at a time when the Consumer Protection Act, 1986 was in the place. The rationale of this commission was affirmed by the Supreme Court bench in 2019 in the case of Rameshwar Prasad Shrivastava v. Dwarkadhin Project (P) Ltd. [(2019) 2 SCC 417].

Limitation Provision in the Consumer Protection Act 

In the case of National Insurance Company Ltd. v. Hindustan Safety Glass Works Ltd. & Anr., the respondents were seeking Supreme Court interference in the dispute being heard by the National Commission on the grounds that the complaint was admitted by the Commission after the duration prescribed by the Statuette of Limitation. The Court noticed that the delay in filing a complaint happened only because of the delay caused by the respondent. In the case, the complainant had filed for insurance the day after the mishap happened but the insurance company stalled the payment by taking the opinion of two different surveyors before eventually completely denying payment. 

The court stated that the limitation was not supposed to be strictly followed. Rather, a pragmatic view of the rights of the consumer must be taken into consideration. The court in the case stated that provision of the limitation cannot be strictly construed for the disadvantage of the consumer, especially where the supplier is causing a delay. If the delay caused is outside the power of the complainant then some concession can be granted. Therefore the Supreme Court allowed the case to be admitted in the commission. 

Trust cannot Lodge a Complaint under the Consumer Protection Act

In the case of Pratibha Pratisthan & Ors. v. Manager, Canara Bank & Ors, it was stated that since a trust does not come under the definition of neither consumer nor complainant nor even “person”. Therefore the trust cannot lodge a complaint under the Consumer Protection Act. The same was also affirmed in the case of Consumer Online Foundation through its Managing Trustee, Mr Bejon Kumar Mishra vs. M/s Supertech Ltd 1114, Hemlunt Chambers 89, 11th Floor, Nehru Place, New Delhi 110019.

Insurance Company cannot Reject Claims on Technical Grounds

In the case of Om Prakash v. Reliance General Insurance[(2017) 9 SCC 724], The insurance company denied the complainant insurance based on his delay in intimating the insurance company. The complainant stated that it was out of his power. The court finding substance in his argument stated that the inability to meet conditions due to circumstances outside the power of the victim must not be a bar for settling genuine claims. The Court stated that the Consumer Protection Act, 2019 was beneficial legislation and therefore the interpretation of the legislation must be liberal keeping the benefit of the consumer in mind. 

Corporate Bodies can be sued under the Consumer Protection Act

In the case of Karnataka Power Transmission Corporation v Ashok Iron Works Private Limited, [(2009) 3 SCC 240] the question of whether a corporation can be considered a “person” under the Consumer Protection Act. The Court, answering the question in the affirmative, stated that the definition of “person” in section 2(1)(m) is not an exhaustive definition but an inclusive one. The court called that clause to be an interpretative one and therefore urged for interpretation to be done with the intention of the legislature in mind. The court stated that the legislature would not have intended to exclude a juristic person from the definition of person enumerated in the Act. Therefore, corporate bodies were “persons” under the ambit of the act and were liable to be sued under the Act as well. 

Professional services fall within the scope of the Act

The question of the status of professional services rendered under the Consumer Protection Act was raised in the case of Indian Medical Association v V.P. Shantha and others. The status of the service rendered by a medical professional was going to be seen in respect to section 2(1)(o) of the Act, which reads as follows:

“service” means service of any description which is made avail­able to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;

The apex court stated that since the Act was established for the benefit of the consumer, the definition of the “service” was also to be construed keeping the “consumer” in mind. On perusal of section 2(1)(o) if the act, the court stated that the definition of service was divided into three parts, namely, the main part, the inclusionary part and the exclusionary part. The court stated that the scope of main part in itself was extremely wide while placing reliance on another judgement, namely, Lucknow Development Authority vs. M.K Gupta, where the court had used the definition of “any” established in Black Law’s dictionary to establish that it meant “all” or “some” or even “one”.The court in that judgement stated that the main part gave the widest scope to the definition of service with inclusive part adding to the list but not exhausting it. The exclusive part placed only two things as bars so essentially with all three added, a service doesn’t come in the ambit of consumer protection act, only if it’s free of charge or personal service.

In the medical association case, it was contended that service can only bind occupations and not professions and furthermore, people practising in the medical profession were already answerable to the Medical Council Act. The Supreme Court rejected both the contentions stating that every professional is to be answerable to a certain state of competency and therefore is not free from giving damages in case of negligence act. The apex court also stated that being answerable to the Indian Medical Council Act for professional follies is no solace for the victim of the negligence of the medical professional. Placing reliance on the changing status of the medical professionals in the UK where they are deemed to be public servants engaging in commercial activities on a wide scale therefore answerable to the same consumer rules as other service providers, the court concluded that medical practitioners are not free from the ambit of service defined in consumer protection act, merely because it is a profession. The respondents also placed another contention that since deficiency of service only refers to inadequacy or shortcoming or faults and the medical practice cannot be judged on any such fixed norms, it therefore cannot be termed a service. The court placed reliance of section 14(1)(d) of the act wherein it was mentioned that the consumer could file for relief for the loss caused due to negligent act of the service provider and therefore stated that the deficiency of service was to be ascertained with the same test as is used to determine damages due to negligence. The respondents further argued that since the bench was made with a composition which could not understand the complexities of the profession, therefore, it was not competent to judge in the case. The court rejected that contention as well stating that the Bench’s job was to look at a case from a legal perspective and it was the job of the parties to put forth the arguments. Help could be taken from experts in the field to help propound certain arguments and the bench was supposed to take all the facts given and state the legal authenticity of it. It is impossible to put a bench ho is well versed in all the subject matters that come before it and only need to be well versed in the legal jurisprudence which the President it. 

Therefore, the apex court concluded that services rendered by medical practitioners by way of consultation, diagnosis and treatment (either surgical or medicinal) are within the ambit of service. Service rendered by the doctor free of charge shall not be considered within the ambit of service under the Act and the payment of a mere token charge for consultation shall not be considered as consideration for the treatment. 

Services have to be rendered with due care and in accordance with Law

In the case of Poonam Verma v Ashwin Patel & Ors, The court stated, while placing reliance on the case of Indian Medical Association vs. V.P Shanta and others (Discussed above) states that medical practitioners have a duty of care to their patients. The court also mentioned the difference between a doctor of homoeopathy and a doctor of medicine and stated that a doctor of homoeopathy is not a registered doctor and therefore can’t administer medicinal treatments supposed to be given by registered doctors. 

Educational institutions must refund the extra fee paid

In the case of Sehgal School of Competition v Dalbir Singh, the complainant had paid the entire fees to the coaching institute but left halfway since the coaching institute was not teaching the subjects he was interested in learning. On asking for the refund of the extra amount paid, the institute denied which prompted the complaint with the national commission. The commission stated that coaching should not charge a lump sum amount and directed the coaching institute to refund the extra amount due to the complainant. 

Sympathy should not influence compensation

In the case of Nizam Institute of Medical Sciences v Prasanth S. Dhananka & Ors., much of the argument revolved around the question regarding the fault of the doctors. They found guilty of negligence and the complainant asked for 48 crores as compensation. The court agreed that the compensation was excessive and re-calculated the amount required by the complainant. The court said the complainant is entitled to the amount that is required by the complainant, but nothing more. The court said sympathy for the victim cannot influence the compensation awarded and the court has a responsibility of striking a balance and should only provide adequate compensation. 

Discovery rule for medical negligence

The discovery rule used to decide when the cause of arises in cases of a medical emergency was first propounded in Ayers v. Morgan [397 Pa.282, 154A.2d 788] by the US courts and was adopted by the Indian legal jurisprudence In the case of V.N.Shrikhande vs Anita Sena Fernandes. In the particular case, the complainant was negligently treated by the doctor resulting in a gauze inside her stomach creating an infection. The complainant got tested 9 years after the initial operation in the duration of which she was under constant pain. The respondents contended that since she did not visit the doctor even once after the operation and 9 years had passed so the entire complaint was barred by limitation. The court in response to this borrowed from the US ‘discovery rule’. Under the rule, negligence could be categorized into two kinds: 1) Patent 2) Latent. So if the damage inflicted by the doctor due to negligence is patent, then the cause of action arises on the date the act was committed but, on the other hand, if the act did was latent, then the cause of action arises when the victim realises the negligence. 

The court applying the rule said that the negligence in the case was latent, and therefore the complaint was within limitation.

Both parents and minor can claim for compensation under the Consumer Protection Act

In the case of Spring Meadows Hospital & Anr v Harjol Ahluwalia, the court was presented with the question of whether parents who take their child to the hospital are also consumers along with the child. The court answered in the affirmative stating that when parents take their child to the hospital, they are hiring the services of the doctor for their child and therefore come under the definition of the consumer while the child who is a beneficiary of the service also becomes a consumer. The court furthermore rejected the contention of the respondent that compensation can only be awarded to one of the parties i.e. the child and stated that since the child being beneficiary faced loss due to the negligence and the parent being hirer of the service also face loss in the form of mental agony. Both of them are liable to be awarded compensation. 

The imposition of a penalty for frivolous consumer claims

In the case of Sapient Corporation Employees Provident Fund Trust v HDFC & Ors., the complainant had alleged deficiency of service being provided by the respondent i.e the bank. The court rejected that argument also held that the complaint made by the complainant was frivolous and since the act was social legislation and does not charge court fees. There needs to be a guard against such frivolous complaints and therefore imposed a 25,000 rs fine on the complainant for a frivolous complaint.

Compensation to the complainants for frivolous appeals

In the case of Delhi Development Authority v D.C. Sharma, the appellant had frivolously instigated a suit against the respondent to keep him from getting the apartment allotted to him. The court noticed the baseless arguments and the clear intent of a frivolous suit, stated the following: 

We are clearly of the view that unless we ensure that wrongdoers are denied profit or undue benefit from frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that courts otherwise scarce and valuable time are consumed or more appropriately wasted in a large number of uncalled for cases.

It is also a matter of common experience that to achieve clandestine objects, false pleas are often taken and forged documents are filed indiscriminately in our courts because they have hardly any apprehension of being prosecuted for perjury by the courts or even pay heavy costs. In Swaran Singh Vs. State of Punjab (2000) 5 SCC 668 this Court was constrained to observe that perjury has become a way of life in our courts.

It is a typical example of how a litigation proceeds and continues and in the end, there is a profit for the wrongdoers.

The court imposed a cost of 2,00,00 on the appellant to make sure no profit or benefit comes to the people who instituted frivolous lawsuits.

Conclusion

As a consumer, it is imperative for you to understand the rights and the reliefs awarded for violation of those rights. Only when the consumers in a country adamantly stand for what’s their rights will the sellers and the manufacturers take precautionary measures to ensure they never get involved over disputes regarding the violation of consumer rights. With the social legislation for consumers getting a new update and calling out the mistakes and shady practises of sellers and manufacturers being easier than ever. The onus is now on us as consumers to ensure our well-being. The maxim caveat emptor (buyer beware!) might have been rendered obsolete thanks to the new act, but it can only truly go obsolete when we use the rights that have been given to us.

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 skill.

The post Dummies Guide to Consumer Protection Act, 2019 appeared first on iPleaders.

This article is written by Prince Gahlawat, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from Lawsikho.com. Here he discusses “What kind of agreement should you enter with freelance Graphic Designers?”.

Graphic Designing is widely understood to be an art of visual communication using images, texts, shapes, forms, texture and/or a combination of these. The visual communication in most cases is intended to convey an idea, message, warnings, directions, signages et al; popular uses therefore can vary from creating; corporate designs, flyers for advertising, designing of logos for digital marketing, web designs, wedding cards, visiting cards, cautionary warning signs, environment designs, road signages, etc. 

From handmade sketches and calligraphy to the use of softwares like Adobe Photoshop, Adobe Illustrator, Adobe InDesign, Canva, Pixlr, Inkscape, GIMP and others; a Graphic designer can possess diverse set of skills to execute a task at hand. These skills can either be self-learned, practiced and mastered over a period of time; or they can be acquired through institutional training and certification. 

As there is considerable diversity in the field of Graphic design and skillsets involved, any employer is recommended to include the following in an agreement for assigning a task to a freelance Graphic designer.

1. Establishing identity, skill and experience level

For any legal relationship formalized by an agreement, it is of utmost importance, first and foremost, to have a clear identification of parties, so as to keep a check on the possibility of impersonation or any other misrepresentation. For this purpose, the employer may either prefer to select the freelancer from platforms like https://www.freelancer.com/ which ensure credible KYC norms[1]; or the employer may go for Aadhar based offline e-KYC wherein, the QR code on Aadhar can be scanned to confirm the stated identity of the freelancer[2]. 

Skillset and experience possessed by a freelancer invariably affect the quality of work. Therefore, it is prudent to include in such an agreement; a set of representations by the freelancer wherein, all claims with regards to any software proficiency, certifications, previous works executed can be asserted. All such purported claims can then be supplanted with addendums – like third-party verifiable copies of works executed, certifications etc. – in the agreement.  Furthermore, there can be room for self-asserted claims in such representations; although, with much lesser credence value.

2. Guidelines and Scope of work  

As an employer of a freelance Graphic designer, it’s important to understand what idea is being sought to be visually communicated by the Graphic designer. For instance, a corporate house seeking some form of web designing for digital marketing, may provide broad guidelines regarding the nature of its business, company ethos, its products/services, nature of its clienteles etc. Likewise, other employers may come up with different set of guidelines depending on the idea sought to be so manifested by them.  

A precise scope of work – like the number of flyers, cards, color contours to be used, design guidelines – executed within the parameters of these guidelines along with mandated deliverables like the presentation of work done – in specified file formats like .html, .xml, .jpeg, sketch, drawing – before subsequent approval of final design by the employer, could very well provide cogent clarity for execution of the agreement. For the sake of equity, a release of nominal advance payment by the employer can be made conditional on such presentations by the freelancer. To protect employers’ rights herein, a provision conferring the right to withdraw the offer for convenience, without incurring any liabilities – in case presentation isn’t deemed satisfactory – would seem prudent, especially where previous work samples have not been shared or don’t match the quality of work presented by the freelancer.  

A mechanism of delivery could also be stipulated within this section so that there is no ambiguity and delivery obligations aren’t found wanting. Like in cases of printable flyers, cards, the physical delivery could be mandated by a pre-specified courier company along with the receipt of dispatch, as proof, being shared through the email. In other cases, the delivery can be made in stipulated file formats via email attachment.

3. Duration, consideration, termination and consequences thereof 

In an agreement where “time is of the essence” one or more parties to the agreement could be impacted negatively if terms of the agreement are not fulfilled by a specific deadline. The breach of deadline in such cases is termed as material breach and has the consequence of the agreement being terminated. 

The employer herein would be well advised to set such specific deadline for delivery of works by the freelancer; a breach of which would terminate the agreement with immediate effect – without any notice. Thus, the consequence of such termination could be forfeiture of performance guarantee in lieu of any advances, while the employer retaining the right to claim any damages by initiating arbitration proceedings. 

Besides untimely delivery, the agreement usually terminates on successful execution of mutual and respective obligations by both the parties. In such a case, the consequence is that both parties stand discharged from their obligations; upon such satisfactory execution, a provision for providing an acknowledgement receipt – by the employer of freelancer – could be made.  

Duration of the agreement will thus include the defect liability period running even after the final performance of scheduled deliveries. 

Consideration for the work executed could be made payable on timely delivery, along with a provision of advance payments as discussed under the ‘Guidelines’ section. Furthermore, a clear payment mechanism must also be identified/specified in the agreement; wherein, payment modes like RTGS, NEFT, cheque, demand draft are mentioned and the requisite details from the freelancer are sought.

4. Performance Guarantee and Defect liability 

It is possible in agreements of such nature that the quality of service isn’t satisfactory, or the quality of products delivered – in case of flyers, cards, posters etc. – isn’t up to the mark. To protect the employer’s interests herein a defect liability period could be contemplated for such agreements, pending which, it shall be obligated on the freelancer to rectify the defect. Such a defect liability period could run co-terminus and beyond the duration of the agreement – for a certain period. 

To ensure proper delivery and rectification of defects as and when such rectification is sought by the employer – within the defect liability period – a portion of the consideration amount could be set aside as a performance guarantee. The performance guarantee can either be in the form of a bank guarantee or be kept with a trusted third-party surety. The release of advance upon approval of work samples at the time of signing or at the time of presentation of work done should be made conditional on freelancer furnishing such guarantee with the bank or third-party surety.

5. Warranties, Indemnities and Limited liabilities  

Terms of warranties are usually regarded as collateral conditions; the breach of which is mostly remedied by a claim of damages and not by terminating the agreement. Keeping this in the mind, the agreement may provide for warranties like; a) the freelancer warrants that all works executed under this agreement shall abide by highest standards of public policy, public law and morality; b) the freelancer warrants that the software technology utilized for completing works under this agreement is done so under valid licenses; so on and so forth. 

Indemnities, on the other hand, secure one party from a loss/liability by obligating the other party to provide protection in certain cases – as espoused under the agreement. The employer herein must include a clause whereby, he and his employees are indemnified by the freelancer from any and all third-party intellectual property infringement claims made on the works executed under the agreement.

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Limiting liabilities in an agreement can inspire confidence in parties to the agreement to fully concentrate on performing their respective and mutual obligations; whereas, it might, in certain cases, also bring a callousness towards such obligations. Thus, a well-balanced limited liability clause wherein, liabilities arising out of certain non-performances like untimely delivery, no delivery, breach etc., can be restricted to the consideration amount or a portion thereof. However, liabilities arising out of a breach in confidentiality or revealing of a trade secret, may not be made subject to such limitations.

6. Assignment of Intellectual property 

For complete utilization, it is recommended for the employer to have an assignment clause wherein, the works produced by the freelancer are assigned to the employer with full title guarantee and absolute entitlement to register copyright – pursuant to the assignment – of the works produced in employer’s name; other rights to exploit and use being specifically mentioned, like; the right to sell, license, commercially use in any way possible etc.  

A few undertakings by the freelancer; that the works produced are original and have not been licensed to or from, sold or otherwise assigned, to any other entity; that any licensed use of a software for producing the works under this agreement has no bearing on this assignment, could also form a part of this clause.

7. Arbitration and Jurisdiction 

Setting forth an Arbitration mechanism for any probable disagreements and disputes have become a must in agreements of commercial nature. Therefore, an arbitration clause wherein, a sole-arbitrator is sought to be appointed based on a pre-specified criteria like; 1) The sole-arbitrator shall have a minimum 10 years’ experience in the field of legal practice in any court in India 2) The sole-arbitrator shall have no criminal record and must be a man of integrity etc.; and the freelancer by signing the agreement acquiesces to the the fast-track procedure of arbitration – Section 29b, Arbitration and conciliation act, 1996 – incorporated in the agreement for final adjudication, determination of all disputes and disagreements, would be recommended in case the agreement is subject to Indian laws; otherwise, arbitration clauses of similar nature could be considered. 

It’s important here to note that amendments to Arbitration and conciliation act 1996; in 2015 and 2019, have added schedule 7th and 8th respectively, wherein certain conditions like relationship with a party, make a person ineligible for appointment as an arbitrator. The earlier practice of appointing company employees as sole-arbitrators in such agreements now stands against this provision. Schedule 8, on the other hand, specifies certain categories of persons eligible to be appointed as arbitrators. Although this provision is speculated to be for newly established Arbitration council under the amendment act 2019. Still, it would seem prudent to pay heed to these new developments in the arbitration law, while drafting the arbitration clause.    

The seat of the arbitration under this clause shall also be specified, preferably at a place of convenience to the employer. Also, the arbitration clause, inter-alia, may stipulate the fees payable to the arbitrator, language of pleadings etc.    

Jurisdiction under Indian laws can’t be ousted absolutely from courts which would otherwise have jurisdiction.[3] Although, Indian courts have upheld conferring of exclusive jurisdiction – through contractual terms – to any of such courts having jurisdiction[4] 

Therefore, it should be suggested that the employer includes a Jurisdiction clause wherein, all disputes and disagreement are made subject to courts at a particular geographical location which is perhaps of convenience to the employer; such jurisdiction clause may further specify that all disagreements/disputes shall be subject of a determination under Indian laws only.  In other jurisdictions outside India, a similar approach may be followed.

8. Confidentiality, non-compete, non-solicitation, Notices and Non-waiver 

It is possible that the employer may share some information with the freelancer – pursuant to the agreement or while negotiating one – which isn’t in public domain and the employer remains desirous of keeping such information confidential. In such cases, a general confidentiality clause like; all information which isn’t in public domain and is shared with the freelancer herein, shall be so kept in confidence, till perpetuity. On the other hand, specific confidentiality clauses might provide for, either pre-defined nature of confidential information; or specific marking of ‘Confidential’ on documents/files as and when shared. 

In case negotiations don’t yield into the agreement being signed. The employer may demand the signing of a non-disclosure agreement before negotiating the agreement, so as to protect any and all confidential information which may be revealed/shared.

Non-compete and non-solicit clauses besides being a guard against the proliferation of confidential information and protection of propriety rights, also serve as a mechanism to ensure an employees’ complete dedication on the job. Thus, a reasonable clause wherein, the freelancer is restricted from taking up any new assignments of similar nature – during the subsistence of the agreement – may be contemplated and included in the agreement.

Non-waiver clauses to ensure that no waiver of performance by either party is presumed in cases where such performance isn’t specifically demanded have become essential in all agreements of commercial nature.            

Notices serve as a mechanism for communication between parties during the subsistence of the agreement. A proper mechanism establishing; timelines, notice periods (for arbitration, termination, delivery etc.), points of communication, means (email, courier, FAX) is essential to keep both parties abreast of the progress made at any given point in time.

Note: – The term “employer” herein, is used as a general term of reference and shall not be construed to signify an employer-employee relationship. 

Disclaimer: – The contents of this write-up are not meant to be a complete and finite understanding of freelancer Graphic designer agreements since contractual relations are highly subjective engagements. Therefore, nothing herein shall be understood as legal advice tendered and must only serve as a general guide on the subject.  

References

1.  https://www.freelancer.com/page.php?p=info%2Fkyc_policy
2.  https://uidai.gov.in/ecosystem/authentication-devices-documents/qr-code-reader.html
3.  Section – 28, Indian Contract Act, 1872. 
4.  Swastik Gas vs. Indian oil corporation limited., (2013) 9 SCC 32.

The post What kind of agreement should you enter with freelance Graphic Designers? appeared first on iPleaders.

This article is written by Devang Singh, pursuing a Certificate Course in Insolvency and Bankruptcy Code from LawSikho.com. Here he discusses “Critical analysis of the change in status granted to home-buyers and home-allottees”.

Introduction

Real Estate Sector in India is one of only a handful couple of areas that have seen exponential development over the most recent two decades. It has attracted tremendous ventures from the general population who put in their well-deserved life reserve funds to open their dream homes. In the course of the most recent decade, we have seen a gigantic increment in the difficulty looked by homebuyers on account of builders and developers. Till several years back, homebuyers had just a single choice, which was to approach the Consumer Court to complaint against the builders and developers and request compensation. Be that as it may, much of the time the agreements executed by the builders were blatantly one-sided, favoring the developers and leaving no leeway for home buyers. (Besides), the Consumer Courts were already over-loaded and homebuyers or allottees needed to wait for a longer period to get their paid amount back or compensation after a score of years and multiple levels of litigation involving appeals/revisions which may move up to the Supreme Court.

In furtherance to the ILRC[1] Report[2], the Government vide Amendment No. 26 of 2018, came up with an Ordinance[3]for applying the recommendations of the committee by introducing an amendment to the Insolvency and Bankruptcy Code, 2016 (“IBC”). The purpose of the Ordinance was to expand the scope of the IBC which especially included and benefited the home buyers as they were granted a status of “Financial creditor”.

The amendment introduces home buyers into the category of financial creditors by adding an explanation to S. 5(8) (f) which defines the term financial debt. The definition is included in the act itself. Financial debt is defined as “a debt along with interest, if any, which is disbursed against the consideration for the time value of money and includes….”[4].

Under the amendment, any sum of money upraised from an allottee under a project of developer/builder is deemed equivalent to having the result of borrowing in the market aspect. “Allottee” is defined under RERA concerning to a project as a person to whom a plot, apartment or building has been allotted, sold (whether as freehold or leasehold) or otherwise transferred by the promoter. [5]

Thus, the explanation inserted vide amendment resulted in the classification of allottees as financial creditors under the IBC. We must not forget to mention that The Real Estate (Regulation and Development) Act, 2016 (RERA) has played a great part in improving the situation too.

RERA, IBC & THE ALLOTTEE

RERA was enacted with the motive to protect the interest of homebuyers. It also aimed to augment transparency and reduce corruption in the real estate business. RERA  aimed to set in motion the process of making necessary rules and regulations in the real estate sector and for the building new infrastructure for the advancement and growth of the same.

For a home buyer/an applicant to file an application and begin with the process as a financial creditor, there ought to be a default pertaining to the financial debt. There seems to be no doubt about the term financial debt, but the question that looms large is when does a default occur? “Default” in terms of Section 3(12) of the Code means non-payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not repaid by the debtor or the corporate debtor, as the case may be.[6]

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But as per the definition can a Default pertaining to a certain sum be said to occur when the agreement of sale is breached (by the corporate debtor) or when there is a long period of waiting in completion of the concerned project including giving the possession? Can an inordinate delay be considered as debt or default within the definition of IBC? In perspective of the delay in completion/handing over possession, is it an ordinate or an inordinate delay? Given such ambiguity, the provisions of RERA would help the allottee in retreating from the concerned project where the builder has flouted the agreements, but then that`s a separate act altogether and seeing how moratorium shall be applicable during that moment, how can the allottee get the benefit of RERA? Therefore, we are back to the ultimate question as to whether the amendment brought about by the Ordinance was required? Is it an indication that it is upon the discretion of adjudicator or the judge to decide how to interpret the IBC & RERA?

The problem also arises when the application is admitted to NCLT under IBC. As soon as the application is admitted, NCLT is bound to declare a moratorium period u/s 14 on any institution of or continuation of any pending suits or proceedings. The said moratorium shall be in effect from the date of the order of insolvency till the completion of the Corporate Insolvency Resolution Process (CIRP). Thus, it appears that once NCLT admits the application and a moratorium is declared, any proceedings which may be pending or to be commenced or commenced under RERA shall be suspended for the period of Insolvency or rather till completion of CIRP which should be over within 180 days, which may be further extended by a period of 90 days on written submission by Committee of Creditors (“CoC”) which makes it total of 270 days to complete the CIRP. But in practical aspect, there are only a few cases which have been completed within the given time frame.

Another facet of the same issue is in the priority waterfall mechanism prescribed by Section 53 of the IBC if a home buyer appears to be an unsecured creditor the only option to recover his payment is, after all, parties including the secured creditors and employees or workers have claimed their respective payments. So, what happens if the allottee is unable to recover any money after a resolution plan is approved? Can the proceedings under RERA continue? Given that a corporate debtor, going into liquidation may not have huge assets to meet the amount (consider writing ‘number’ instead of ‘amount’) of debts piled up combined with limited time, inadequate experience and improper accounts and documents, the possibility remains slim that home buyer shall get his share of money due. Even if after liquidation, the allottee is unable to get his due share, then there is no recourse left for him to take and he will have to be content with the meagre amount received.

Situation before IBC Amendment 

We must see that the before  this amendment the only resort was to file a civil suit for recovery of dues and the precedent for same was set by the Apex Court in the case of Unitech Residential Resorts Ltd. v. Atul Gupta and Anr[7]where it analysed the issue facing home buyers and directed the said resort among other things to deposit a sum of Rupees. Seventeen Crores so that it can be distributed to its allottees who were waiting for possession of their flats for over seven years. In a similar reported case, the Supreme Court delivered a verdict against Jaypee Associates to pay Rupees Five lakhs per purchaser who got their flats after a delay of five years.

Situation Post-IBC Amendment

After the said Amendment, a home buyer is treated equivalent to “allottee” in a real estate development scheme or project The definition of “allottee” is given under RERA as “a person to whom a plot, apartment or building, as the case may be, has been allotted, sold (whether as freehold or leasehold) or otherwise transferred by the promoter, and includes the person who subsequently acquires the said allotment through sale, transfer or otherwise but does not include a person to whom such plot, apartment or building, as the case may be, is given on rent.”[8]

The amount paid by the allottees to the developer or builder will be considered as financial debt (similar to the market aspect of borrowing in its commercial nature) and the allottees shall be considered as financial creditors. This shall entitle the said home buyer or allottee to file an application to start CIRP against a defaulting builder.

Conclusion

The allottees after attaining the position of a financial creditor under the code through this amendment can now approach the NCLT u/s 7 of IBC against astute developers. The allottees can now be part of the CoC through an authorized representative and can expect to see the finality of their case within 270 days. There are many aspects of the amendment that raises questions and the amendment fails to answer or rather resolve them effectively. It is a boon to home buyer or allottees but the process as to how and when they will get paid and whether their right would be above the bank`s interest or not remains a puzzle. It does seem to be a move in the right direction but the process has been made complex as to how RERA and IBC shall work together to effectively provide justice to the consumers and other creditors. Overall, with the passage of time, more lacunas and improvements shall come forward and hopefully balance each other out to make this a win-win situation for everyone.

References                

[1]Insolvency Law Reform Committee Report

[2](ILRC 2018)

[3] Insolvency and Bankruptcy (Amendment) Ordinance, 2018

[4] http://www.mca.gov.in/Ministry/pdf/TheInsolvencyandBankruptcyofIndia.pdf

[5]https://indiacode.nic.in/handle/123456789/2158?view_type=browse&sam_handle=123456789/1362

[6]supra n. 2

[7]M/S Unitech Residential Resorts Ltd. v. Atul Gupta and Anr. CA 6044/2015

[8]supra n. 3

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 skill.

The post Critical analysis of the change in status granted to home-buyers and home-allottees appeared first on iPleaders.

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

Concerned about the habit gaps in your life and career?

Want to build a habit? Great.

Want to kill a habit that has been slowing you down or harming you? Great.

You need to understand how habit gets created and how they are perpetuated once the behavior is learned at the level of a habit.

It all starts with some kind of awareness. 

Let’s say it’s a cigarette addiction. How is it going to start? I can speak from personal experience.

The first trigger is the awareness and the universal availability of cigarettes. Being aware of the existence of cigarettes is easy. Everyone knows. Cigarette companies make sure of that, through all sorts of promotional activities. Although advertising of tobacco is banned, they find ways to remind us of their existence. 

Most importantly, it is available on every street corner, and there are big advertisements on the shop front. That takes care of the awareness part.

Then comes motivation. We need to motivate people to smoke cigarettes. In my case, it was done by my friends. I saw them craving for cigarettes after drinking, which made me very curious about what was the thing that they enjoyed so much. 

The next part is doing. One day, after I had a few drinks, I decided to try out a cigarette. When I did try it, it felt like I have sparks running through my veins. It was an incredible high. 

The smoking of that cigarette was the action/ response, and the high was the reward. 

Soon, I craved for that reward again. Then I smoked, again and again, to get the same rewards. 

The trigger evolved over time. After a few years of smoking, I began to associate cigarettes with stress or partying. And partying means drinking alcohol and lots of smoking. 

If I was stressed or agitated, the automatic response, without having to think or wonder, was to go and get myself some cigarettes to smoke.

I would feel an itch to smoke whenever certain triggers went off in my brain, and I will have to respond to it. Even when I wanted to stop, knowing it was harming my health, stopping was very hard, because I was addicted by then.

That is how habits work. 

Now the good thing is that this formula is not only useful to create bad habits like smoking, but it can be used to create life-changing good habits, too, or it can be used to dismantle bad habits as well. 

How do kids learn to brush their teeth, a very basic habit most of us follow for our entire lives?

Our parents make us aware that we must brush our teeth when we wake up and before we eat breakfast. The triggers include the morning itself, the act of waking up, and wanting to have breakfast – maybe one of them or a combination of all these.

Next is motivation. We are told that not brushing our teeth is really bad for health. It causes bad breath, diseases of the gum, toothache and what not. There are also those toothpaste ads we saw as kids where attractive people got attracted to each other because they used such amazing toothpastes. We craved to be that attractive. We craved to feel fresh and smart, not a person with ugly decaying teeth and foul smell in their mouths.

The response was brushing every single day before we ate breakfast.

The reward was the appreciation of parents. “Good girl” or “good boy” they said. Also, good oral hygiene too.

Even the toothpaste includes chemicals that give you a tingling feeling of satisfaction after you brush. It was added to toothpaste by marketing experts specifically so you will crave that feeling in your mouth every morning. There is a famous story about how that came to be, but that is for another day.

The reward we got in terms of parental feedback, societal approval and tingling sensation in the mouth helped us to create a lifelong habit of brushing our teeth. 

There is a lot you can learn from these two examples. It is well established that much of our success in life depends on the habits we develop. Many habits are invisible and unconsciously picked up and practiced, making it very difficult to even realize that they exist. 

However, it is important to identify patterns where we are struggling to grow, because, in every such aspect of our life, our progress either depends on dismantling existing habits that are slowing us down or building new ones that push us forward towards our destiny. 

If you want to change your own behavior, such as if you want to spend more time studying, or writing or exercising, or doing business development activities that you know you should be doing but you do not, you need to begin with the awareness that it is a failure to build the right habits that have led to your failure to reach your goals.

Once you identify the habits you are interested in developing, all you need to do is figure out each part of the following:

The Trigger

What will trigger the behavior? What is the cue that will set off the craving? This is why a lot of habits are developed around waking up, having lunch, or going to bed – inevitable, powerful triggers. There are some things you are going to do every day no matter what, and hence building habits around those triggers make such habits very sticky. 

You can create other triggers, such as stress. Whenever I feel stressed and overwhelmed, I turn to breathing exercises or meditation. If I am in pain, such as a headache, injury or fever of any sort, my immediate response is vipassana meditation. It helps me a great deal to manage pain. 

Sometimes you need more mundane triggers, like an alarm. Or an app that prevents you from using social media or WhatsApp during the morning. You can block off access to mail or phone during a certain time of the day.

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I had an alarm that went off every day at 8 pm: call an acquaintance and share about ClikLawyer with them. I would generally have a call with a long lost friend or acquaintance, catch up about what’s happening in their life, and update them about my work at ClikLawyer. Doing this every day led to a lot of referral work in the months to follow! Alarms can be great triggers.

You can have a person intervene and make you do something that you are too lazy to do, even that counts as a trigger if it is reliable and will happen consistently. 

If the trigger is not reliable or consistent, your efforts will fail, so careful on that front. Keep trying out new triggers if necessary until something sticks. 

If you want to make a habit go away, you need to make the triggers weaker, or more difficult to encounter. 

Craving

Why could I study for 10 hours a day for law entrance as a 17-year-old kid? It was because I was highly motivated to study law and get through to a good NLU. I regularly read up on the jobs NLUD graduates did, I read about career opportunities, mooting, recruitment, campus life and anything I could find. Everything I found out about law schools excited me even further to study law and prepare hard for the entrance. 

Motivation cannot be one time. It has to be a continuous process. When it is strong enough and automatic enough due to regular thought patterns, it becomes a craving. I craved to get into a top law university and live the life I always imagined.

Then I craved to get into a good law firm. Then I craved to start my own company and succeed. 

You need to build up the craving and keep it going in order to do heavy-lifting, extraordinary work. 

The craving gets stronger over time as you keep practicing the habit and get some rewards for the same. When you get the reward, your craving is satisfied. However, later you get the craving again, only stronger from being fortified by the previous satisfaction. 

On the contrary, if you want to dismantle a habit, you need to weaken the craving. You can do so by giving yourself a craving to stop it, or by providing evidence that it is really really bad for you. 

Pictures of melting lungs and throat cancer on boxes of cigarettes really help – because they creates an aversion towards cigarettes even if you continue to smoke. That aversion can build up and get multiplied over time.

In my case, I used sleep hypnosis tracks that imprinted on my mind that I want to quit smoking. I also used autosuggestion methods in which I kept telling myself and reminding myself that I do not want to smoke, it is going to kill me if I continue and that I hate smoking. It took a long time, but then it worked. 

I do not have cravings to smoke cigarettes anymore.

The human mind is very powerful, which you can use to increase or reduce the craving for anything you like. 

Response

All the triggers and all the craving in the world doesn’t make any difference until you act on the craving or motivation, and take some action. This is the response. The action/response is the hard part when you want to create new habits.  

You have to actually do it in the beginning, mindfully, intentionally. You have to do it for a while. Some experts say that you have to do it for at least a couple of months to build a habit. You should be prepared to do that. I have been able to build some habits faster. Others took longer. 

However, it is certain that you need to stick to taking those actions over a long period of time for any habit to become second nature, learned behavior that gets triggered automatically, leading to phenomenal results. 

What makes a difference is understanding that individual actions alone are not as useful or valuable as actions taken with the specific intent of building a long-lasting habit. Your focus must be on consistent action that results in habit creation, which goes onto become a part of your identity itself. 

Reward

If you want to build a habit, make sure that there is an obvious reward, and that you stop to enjoy it. Without rewards, it is very had to build any habits. 

If you want a kid to build a habit, after they take the desired action, you have to reward them. Not so different from training a dog. Carrot and stick. 

However, reward works far better than the stick, as modern marketers have discovered. 

Also, shorter feedback loops, where you get rewarded faster, works better!

Why do people love playing computer games or even ludo so much, while they do not want to play complex games in life involving real success and real stakes? It is because habits are easier to develop when your rewards come sooner. If you have to wait too much for the reward, it is hard to form that habit. 

In whatever habit you are trying to build, there should be frequent rewards for it to really work. 

For example, a gamechanger for me in my weight loss journey was getting a weighing scale in my bedroom that told me my body fat percentage, hydration level, muscle mass among other things. When I could see the impact of every indiscretion, binge eating, drinking alcohol even for one evening, and also the evident benefit of working out and fasting reflecting on the scale, it was easier to adopt good behavior. 

One problem of working out is that the results show only after several weeks. By looking at the scale more frequently, I was able to shorten the reward loop. When numbers got better on the scale, it was a reward in itself, and it motivated me to do even better.

What are the skills you are looking to develop? What are the habits you want to create? What habits do you want to ditch?

Do you want to build a habit of working on your law practice on a weekly basis, so you build a better reputation, have more clients approach you and earn the respect of your peers and judges? Please join our Legal Practice Development and Management course, and we would help you to do exactly that!

Do you want to develop a habit of training to improve your legal skills, such as drafting, client counseling, creating winning legal strategy, negotiation and research? Our courses will help you to build powerful habits that serve you for an entire lifetime. Check out the courses in which we are accepting enrollment at the moment. Remember that these courses are backed by a 100% money-back guarantee. Read our refund policy here to understand how that works.

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Certificate Course in Trademark Licensing, Prosecution and Litigation

Certificate Course in National Company Law Tribunal (NCLT) Litigation

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 skill.

The post Habit loop: Trigger, Craving, Response, and Rewards appeared first on iPleaders.

This article is written by Shambhavi Tripathi, a 3rd-year student of LL.B. in Panjab University, Chandigarh. The article deals with the relation and differences between cyber crime and cyber security, elements of cyber security and different categories of cyber crimes.

Introduction

Cyber crimes are increasingly becoming social engineering, where cyber criminals invest resources and time to gain knowledge about technical and scientific aspects of cyber security and because of that the term “cybercrime” is often confused with the term “cyber security”. Even though the two are extremely different and belong to different areas of expertise, yet they are interrelated with each other. The two are discussed below.

Relation between Cyber Crime and Cyber Security

Cyber Crime

Cyber crime is a crime that involves the use of computer devices and the Internet. It can be committed against an individual, a group of people, government and private organizations. Usually it is intended to harm someone’s reputation, cause physical or mental harm or to benefit from it, for example, monetary benefits, spreading hate and terror etc. As happened in 1998, a group of Tamil guerrillas, known as Tamil Tigers, sent over 800 e-mails to Sri Lankan embassies. The mails read “We are the Internet Black Tigers and we’re doing this to disrupt your communications.” Intelligence authorities identified it as the first known attack by terrorists against a country’s computer systems.

The main principle of cyber crime law is punishing unauthorized access or illegal use of computer systems and the internet with criminal intentions, so that damage and alteration of systems and data on it can be prevented. However, the largest threat of cybercrime is on the financial security of an individual as well as the government.

Cyber Security

Cyber security is a technique to protect computers, networks, programs, personal data, etc., from unauthorized access and threats. It is an activity by which information and other communication systems are protected and defended against the unauthorized use or modification or exploitation of the device. Cyber security is also called information technology security. It includes the techniques of protecting computers, networks, programs and data from unauthorized access or attacks that can cause damage to them or exploit them in any way. Basically cyber security is a technical approach to secure systems from such attacks. 

Good cyber security recognizes all the vulnerabilities and threats a computer system or network contains. It then identifies the cause of such vulnerabilities and fixes those vulnerabilities and threats and secures the system. Strong cyber security programs are based on a combination of technological and human elements.

Differences between Cyber Security and Cyber Crime

There are certain aspects on which cyber crime and cyber security can be differentiated upon, they are:

• Types of crimes: In cyber security, the kinds of crimes are where a computer software or hardware or computer network, is the main target (ransomware, viruses, worms, distributed denial of service attacks etc). 

In Cyber crimes, the crimes are where an individual or a group of individuals and their data is the main target. Governments and organizations can also be the targets of cyber crimes (cyber bullying, hate speech, child pornography trafficking, trolling).

• Victims: Victims in these two fields are also different. In cyber security, victims are governments and corporations whereas, in cyber crimes, the range of victims is rather broad as victims can extend from individuals, families, organizations, governments and corporations.
• Area of Study: Both these fields are studied in different areas. Cyber security is dealt with under Computer science, computer engineering, and information technology. Coding, networking and engineering strategies are used for making networks more secure. 

On the other hand, cyber crimes are dealt with under Criminology, psychology, sociology. Basically, it is the theoretical understanding of how and why crime is committed and how it can be prevented.

Various elements of cyber security

For a strong cyber security system certain elements are needed. The elements are as following:

• Application security: Applications play an essential role in business ventures; that is why every firm needs to focus on web application security. Web application security is important in order to protect customers, their information and interests. Application security helps in thwarting any attempts to violate the authorization limits set by the security policies of the computer system or networks. 
• Information security: Information includes business records, personal data, customer’s data, intellectual property etc; hence, it is important for a corporation to have strong cyber security for information to prevent its leakage.

Information security involves safeguarding sensitive information from illegitimate access, usage, or any other kind of damage. This also ensures that the important data does not get lost when any issue like natural disasters, malfunction of system, theft or other potentially damaging situation arises. The characteristics defining information security are confidentiality, integrity and availability. Information security also includes Data Confidentiality, Data integrity, Data availability, and Data authenticity. 

Network Security: Network security consists of protecting the usability and reliability of network and data. A network penetration test is conducted to assess the vulnerabilities in a system and network.

It refers to broad range security policies for thwarting and monitoring unauthorized access, misuse, damage to a computer system and other network systems. Network security extends coverage to diverse computer networks, surrounding private and public communication systems among corporations and organizations.

• Disaster Recovery/ Business continuity planning: Business continuity planning (BCP), also known as disaster recovery, is about being prepared for any kind of interference or cyber threat by identifying threats to the systems on time and analyzing how it may affect the operations and methods to counter that threat.
• Operational security (OPSEC): Operations security is used to protect organization functions. It identifies important information and assets to track down threats and vulnerabilities that exist in the functional method.
• End-user education: It is important for an organization to train their employees about cyber security because human error is one of the major causes of data breaches. Every employee should be aware of the common cyber threats and should have the knowledge to deal with them. 

Training will allow management to accustom themselves with system users and threats to it and user training will help in eliminating resistance to change and advancements and lead to user scrutiny on a closer level.

Leadership commitment: It is important to have leadership commitment in organization and corporations in order to have a strong cyber security program. Without having the leadership in the team it is complicated to develop, implement and maintain the cyber security processes.

Different Categories of Cyber Crimes

The cyber crimes may be broadly classified into four groups. They are:

Crime against the Individuals

Crimes against the individual refers to those criminal offences which are committed against the will of an individual to cause certain harm to them like physical or mental harm. For example assault, harassment, kidnapping, and stalking etc. but in cyber crimes the nature of crimes against individual changes a little bit and takes the form of cyber stalking, pornography, cyber bulling, child abuse, fraud, cyber threats etc. Such as cyber defamation is committed to cause harm to the reputation of an individual in the eyes of other individuals through the cyberspace. A few cyber crimes against individuals are: 

1. Harassment via electronic mails.
2. Dissemination of obscene material.
3. Cyber-stalking.
4. Defamation.
5. Indecent exposure.
6. Cheating.
7. Unauthorized control/access over computer system.
8. Email spoofing.
9. Fraud.

Crime against Property

The second category of cyber crime is that of cyber crimes against property. With the growth of international trade, businesses and consumers are increasingly using computer and the internet to create, transmit and store information in the electronic from instead of traditional form. This has ultimately lead to certain cyber offences which affect a person’s property. These types of cyber crimes include cyber vandalism to steal information of other organizations or to steal someone’s bank details, use software to gain access to an organization’s website etc. This is similar to instances of a criminal illegally possessing an individual’s bank or credit card details. In cyber crime, the hacker steals a person’s bank details to gain access to funds, make purchases online or run phishing scams to get people to give away their information. They could also use any kind of malicious software to gain access to a web page with confidential information. These types of crimes include vandalism of computers, intellectual property crimes (Copyright, patented, trademark etc), online threatening etc. Cyber crimes against property include: 

1. Computer vandalism.
2. Transmitting virus.
3. Net-trespass.
4. Unauthorized access / control over computer system.
5. Internet thefts.
6. Intellectual Property crimes:

• Software piracy.
• Copyright infringement.
• Trademark infringement.

Crime against Governments or Organizations

There are certain cyber crimes committed to threaten the international governments or organizations. These cyber crimes are mainly committed for the purpose of spreading terror among people of a particular country. The instigators or perpetrators of such crimes can be governments of enemy nations, terrorist groups or belligerents etc. Cyber crimes against Government include cyber attack on the government website, military website or cyber terrorism etc. In these kinds of cyber crime, cyber criminals hack governments or organization’s websites, government firm, and military websites and then circulate propaganda or threats or rumors. These cyber crimes are known as cybercrimes against Governments or Organizations. Following are the few examples of crime against Governments or Organizations:

1. Unauthorized access / control over computer system.
2. Cyber terrorism against the government or organization.
3. Possession of unauthorized information.
4. Distribution of Pirate software.

Crime against Society

Those cyber crimes which affect the society at large are known as cyber crimes against society. These unlawful acts are committed with the intention of causing harm or such alterations to the cyberspace which will automatically affect the large number of people of society. The main target of these types of crimes is public at large and societal interests. The cyber crimes against society include the following types of crimes: 

1. Child pornography.
2. Indecent exposure of polluting the youth financial crimes.
3. Sale of illegal articles.
4. Trafficking.
5. Forgery.
6. Online gambling.
7. Web jacking.

Conclusion

In conclusion, cyber security can be considered as a set of guidelines and actions intended and needed to prevent cybercrime but cyber security is not only limited to that. The two types of problems differ considerably in terms of what happens and who the victims are, as well as the academic areas that study them. Therefore, the two, cyber security and cyber crimes, must be considered as separate issues, with different safeguards designed to address the different privacy and security issues of each.

All sorts of data whether it is personal, governmental, or corporate need high security. Some of the data, which belongs to the government defense system, scientific research and developments, banks, defense research and development organization, etc. are highly confidential and even small amount of negligence to these data may cause great damage to the whole nation or society at large, therefore, such data need security at a very high level.

Hence, cyber security is all about protecting government, organizations and corporate networks, intending to make it difficult for hackers to find weaknesses and exploit them or threaten them. Cybercrime, on the other hand, tends to focus more on individuals and families online. It is highly needed that the top leaders of an organization or government should invest in the cyber security measures to make it strong and impenetrable. 

References

1. Cyber Crime and Cyber Security; tutorialspoint; Date of Access: 30.10.2019 <https://www.tutorialspoint.com/fundamentals_of_science_and_technology/cyber_crime_and_cyber_security.htm>
2. The difference between cyber security and cybercrime, and why it matters by Roderick S. Graham; The Conversation; Dated: 19.10.2017; Date of Access: 30.10.2019 < https://theconversation.com/the-difference-between-cybersecurity-and-cybercrime-and-why-it-matters-85654>
3. Understanding the Difference between Cyber Security and Cyber Crime; Privacy International; Date of Access: 30.10.2019 <https://privacyinternational.org/explainer-graphic/2273/understanding-difference-between-cyber-security-and-cyber-crime>
4. Elements of cyber security by Robert Roohparvar; InfoGuard Cyber Security; Dated: 02.03.2019; Date of Access: 30.10.2019 < http://www.infoguardsecurity.com/elements-of-cybersecurity/>
5. Elements of Cyber Security; Cross Domain Solutions; Date of Access: 30.10.2019 < http://www.crossdomainsolutions.com/cyber-security/elements/>
6. Chapter III: Meaning, Concept and Classification of Cyber Crime; Shodhganga; <https://shodhganga.inflibnet.ac.in/bitstream/10603/188293/11/11_cha%5bpter%203.pdf>
7. Types of cyber crime; Panda Security; Dated: 20.08.2018; Date of Access: 30.10.2019 < https://www.pandasecurity.com/mediacenter/panda-security/types-of-cybercrime/>
8. Cyber Crime Vs Cyber Security: What Will You Choose?; Europol; Date of Access: 30.10.2019 <https://www.europol.europa.eu/activities-services/public-awareness-and-prevention-guides/cyber-crime-vs-cyber-security-what-will-you-choose>

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 skill.

The post Cyber Crime and Cyber Security : An overview appeared first on iPleaders.

This article has been written by Harshita Jaiman, B.A.-LL.B.(I.P.R. Hons.) , National Law University, Jodhpur. 

Introduction

Media reports from all over the world are full of demand for the ‘right of self-determination’ ever since the Arab Spring. In recent times, this demand has been asserted inter alia by Kurds, Palestinians, Tibetans, Kashmiris, people of Hong Kong and Puerto Ricans.

While this right of self-determination is available to every such community which has a unique culture, it can also be used as a tool to suppress minority or disrupt international peace.

This project attempts to study:

• The principle of self determination in the context of Israel’s state-law passed in July, 2018 in the background of the Israel- Palestinian conflict;
• Various aspects of religion and nationality covered by the abovementioned law and its implications;
• The debate and controversy surrounding this law;

And thereafter analyse the effect of the law on the minority rights and its impact on the interstate relations between Israel and Palestine.

Self Determination

The right of self determination, simply put, is the right of a community to have its characteristics reflected in the governance and institution which regulates it.[1]

Meaning

It is this assertion of rights over one’s territory and self governance which constitutes self determination. It is the right of people under foreign, colonial or alien domination to self governance,[2] whether through formation of a new state, association in a federal state, or autonomy or assimilation in a unitary (non-federal) state.

This idea of collective rights or rights of a group became prominent in connection with the principle of self determination. Self determination is articulated in various ways- as a political principle, legal principle and legal right.

Sources

Apart from the General Resolution passed by the United Nations, the right of self determination has been included in the International Covenant on Civil and Political Rights, 1966 and International Covenant on Economic, Social and Cultural Rights, 1966.

Article 1, International Covenant on Civil and Political Rights: All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social, and cultural development.

Article 1(1), International Covenant on Economic, Social and Cultural Rights: All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

History

This expression first came into use in the mid-17^th century by liberal and national radical nationalists and increasingly by the labour movement. The evidence of the first mention of a general right of self determination of people appears in 1870 in the work of Eduard Zeller, a historian of philosophy.[3]

The origin of expressions ‘self determination’, ‘right of self determination’ and ‘right of self determination of people’ and all other related phrases dates back to shortly before the beginning of labour movement, to the primarily bourgeois nationalism of the mid-nineteenth century.[4]

This concept, however, developed rapidly after the decade following the First World War when decolonisation started. The war couldn’t have been fought and won by the Allies had it not been for the colonies. Colonies were a source of raw material, cheap labour and also acted as a market for the manufactured products made in the imperialist countries. During war as well, the colonies were responsible for producing siege-specific goods, arms and ammunitions etc. which couldn’t have been produced in the European industries sans the resources and labour provided by the colonies.

When it dawned upon the colonies that they were being exploited and drained of their wealth by the colonizers and that their services formed the backbone of the imperialists, they sought to use world war as an opportunity to assert their rights over their territory.

Declaration of the United Nations General Assembly

 This shift from ‘principle’ to ‘right’ first appeared in the Declaration on the Granting of Independence to Colonial Countries and people.[5] The declaration reads as follows:

“The General Assembly,

…convinced that all peoples have an inalienable right to complete freedom, the exercise of their sovereignty and the integrity of their national territory,

Solemnly proclaims the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations;

And to this end declares that:

1. …
2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. “[6]

Self determination can acquire different meanings in different situations. There is no universally accepted definition of self determination. Hence, in a general manner, it can be defined as the right of a community which has a distinct character to have this character reflected in the institutions and establishment which govern it.[7]

Criteria for self determination

The right to self determination is said to be exercised by a group of people in the following circumstances:

1. When they have established a sovereign and independent state; or,
2. When they have freely associated with another state; or,
3. When they have integrated with another state after having freely expressed their will to do so.

The obligation of the International community

According to Hohfeldian analysis of rights, where there is a right, there is a corresponding duty vested in another person/ body. This applies in case of the right of self determination as well. It creates an obligation on the states to respect and promote this right and refrain from taking any forcible action which may deprive people of such a right. The obligation flows from the principle of self determination itself and exists on the international community as a whole, i.e., it has an erga omnes status.[8]

Application

The right to self determination has been exercised by many ethnic/ religious minorities across the globe. The list includes Catalonia, Hong Kong, Kurdistan, South Africa, Sri Lanka, United States, etc.

History Of The Israel-Palestinian Conflict

The Palestinian-Israel conflict began in the early 1900s when Zionism started in Europe as a movement of European Jews to escape persecution and establish their own state in their ancestral homeland. During that time, this region was a part of the Ottoman Empire and a British mandate too.

Sykes- PICTO Agreement

As the Jews started pouring in, the Arabs in the region became agitated and a struggle regarding borders ensued. This increased tension in the region regarding borders. Thus, in May 1916, the Sykes-Picot Agreement divided the land into two regions- Iraq, Transjordan and Palestine under British control and Syria and Lebanon under French control. Consequently, the Emir of Mecca launched the Great Arab Revolt against the Ottoman Empire and gained control over Jordan, Arabian Peninsula and southern Syria. Christian and Jewish enclaves were carved out in Lebanon and Palestine. This was followed by the Balfour declaration according to which the British government extended its support for a Jewish homeland.

Nazi Party comes to Power

Things escalated when Hitler gained power in Germany. There was a mass exodus of Jews to Palestine during Holocaust. This flared up Arab- Jewish conflicts and there were attacks on the British troops and infrastructure also increased. This was followed by the Second World War after which the British government referred the question of Palestine to the U.N.

UN Declaration

The U.N., in 1947, directed the partition of Palestine into separate Palestinian state and Jewish state. According to this mandate, the western Palestine which was to be a Jewish territory was to consist of Negev Desert, coastal plains between Tel Aviv and Haifa and parts of northern Galilee. The Arabian territory was to consist of West Bank, Gaza strip, Jaffa and the Arab sectors of Galilee. Jerusalem was proposed to become and international enclave under the U.N. Trusteeship. This arrangement was not taken well by the Arabs who believed that Palestine was all theirs and Jews were foreigners trying to invade on their land. Thus, they wanted to drive them away.

Deir Yassin Attack

The actual conflict between Israel and Palestine was marked by Deir Yassin attack. Jewish forces attacked several villages of Palestine, one being Deir Yassin. It was an attempt to regain possession over Jerusalem and ensuring the safety of their own settlements.

Israel’s Declaration of Independence

Soon after, in May 1948, Israel declared its independence and extended a hand of peace to all neighbouring Arab states. This declaration was immediately followed by the First Arab-Israeli War that very evening where armies from Lebanon, Syria, Iraq and Egypt attacked Israel. Arab-Palestinians in this region fled and were ultimately forced to live as refugees as the Arab nations refused to absorb them.

Six days war & Yom Kippur War

Though the Arabs signed an armistice agreement with Israel, the tension between them continued which was seen in the form of the Second Arab-Israel Conflict or the Suez crisis, the Six Days War and the Yom Kippur War (1973). Meanwhile, many Arab militant groups emerged in this region such as the Palestine Liberation Organisation (PLO) and Hamas.

Failure of Camp David II

Due to the growing tension, Camp David Accords signed between Egypt and Israel in 1978 proved futile and another attempt of resolution of conflict failed in 2009. Suicide bomber attacks on Israel continued for a very long time and Israel assassinated Palestinian leaders in retaliation.

Israel  Attempts To Build Wall

In the more recent developments, the wall built by Israel in the West Banks to enhance its security was held to be against the norms of the international law by the International Court of Justice in 2004. Meanwhile, as Hamas seized political power in Palestine, the conflict worsened as did the attacks on Israel.

Palestine Gets International Recognition

In 2012, the United Nations accepted Palestine as a non-member observer state. Soon after, it became clear from the policies of the Israeli government that they were not in favour of ‘Two-Nation Theory’. This reflected in Israeli Prime Minister Benjamin Netanyahu’s speech on the eve of elections. The Vatican also recognised Palestine as a state in 2015. Another surprising turn of events took place when U.S., the ardent supporter of Palestinian cause, committed $38 billion over ten years to military assistance for Israel. This was followed by U.S.’ recognizing Jerusalem as Israel’s capital and opening its embassy there.[9]

Israel’s Nation-State Law

The most recent development in this issue took place on July 19, 2018 when the Israeli parliament passed a law declaring Israel a Jewish state and Jerusalem as its undivided capital.

This paper attempts to understand the implications of this step on Israel, its relationship with the refugees and Palestine and predict the effect it will have on rest of the world. 

State Law: Form of Apartheid

The Law

The Israeli parliament, Knesset, passed a law in July this year which declares Israel as a Jewish nation-state. Introduced amongst heavy opposition, this law was approved by the Knesset members by voting in its second and third plenary readings by a majority of 62:55, with two abstentions.

The law covers incorporates various issues, inter alia, the basic principles, state capital, state symbols, language, provision for immigrants and refugees, concern for Jewish community and their settlement, immutability of law. Some of these provisions are contentious and have given rise to mass criticism and debates.

Basic Principles

According to the basic principles enshrined in the law, Israel has been stated to be the ‘historical homeland of the Jewish people’. Further, it declares Israel to be the ‘national home of the Jewish people which fulfils its natural, cultural, religious and historical right to self determination’ and also that this right to exercise national self-determination in Israel is ‘unique to Jewish people’.

State Capital

Another contentious issue is one regarding capital of the state. The law states that undivided Jerusalem, ‘complete and united’ is the capital of Israel.

Language

Yet another controversy has been created by the clause on language. The law gives the status of ‘the state language’ to Hebrew. Although it states that the special status of Arabic language will not be revoked, it directs regulating the use of Arabic in state institutions by operation of law.

Connection to Jewish People

Another clause which may have a far reaching impact is the one which reads as ‘Connection to the Jewish people’. According to this clause, the state will not only strive to ensure the safety of the Jewish persons in captivity or exile due to their religion but also act to preserve the cultural, historical and religious heritage of the Jewish Diaspora.

Immutability of Law

The smallest but the most authoritative clause is one which provides for immutability of the law. In the exact words,

“The Basic Law shall not be amended, unless by another Basic Law passed by a majority of Knesset members.”[10]

This clause alone ensures the fact that all the tenets laid down by the law, however controversial, is a part of the ‘Basic Law’ because of which amending it will prove to be a Herculean task. This law not only makes Israel a Jewish state, but also becomes one of those laws which will, just like the Constitution, guide the legal system and government policies alike.

Criticism

Right from its very proposal in 2011, the law has attracted criticism from across the globe. It has been subjected to criticism not only by the Arab settlers in Israel but also by people affiliated with the Israeli right like the members of Likud Party and the Jewish Diaspora.[11] Scholars and politicians alike are raising their concern about this issue.

It has been argued that the law is contrary to the principles of democracy which form the base of the state’s politics and that it creates confusion with regard to its status as a Jewish- democratic state.

Even the president of Israel raised his concern in an open letter; Reuven Rivlin said that the legislation, being biased towards Jews, could harm the Jewish people worldwide (including the Jews in Israel) and could also be used by enemy states as a weapon against Israel.[12]

In a statement issued in an interview with Haaretz, the Tourism Minister of Israel, Mr. Yariv Levin, who supervised the passage of law, said that the Act could be used as a tool to prevent family reunification of Israeli Jews and Palestinians. This would help not only in security purpose but also help maintain the character of the country as the homeland of Jews. This would not undermine the Law of Return which grants citizenship to immigrating Jewish families. [13]

This law has also met opposition from the Druze community of Israel. This community forms a major chunk of the Israeli army and unlike the other Arab Israeli citizens are subject to the law. They claimed that they have been treated unfairly for years and have been given the status of second class citizens.[14] However, the political leaders stated that though they were unhappy about their status in the country, it was not a result of the nation-state law. Even they believe that Israel is the nation of Jews and it needs to be codified as law.

The most significant criticism is one which has come from the Jewish groups. The American Jewish Community stated that the nation-state law has put at risk the commitment of Israel’s founders to build a Jewish-democratic country.[15] 

Defence

Several attempts have been made by members of the Likud party which is currently in power in Israel and several other bodies to defend the nation-state law.

Israeli researchers from the Institute for Zionist Strategies, a research institute, republished one of their papers dating back to July, 2009 in which they assert their support for the proposal of such a law.[16]

These supporters rely on the mandate of the League of Nations as per which Israel was to be a Jewish homeland; on the UN Charter which continued this mandate; on the UN Resolution of 1947 calling for the establishment of Jewish and Arab states and on Israel’s declaration of independence in 1947. They claim that the new state was defined by the members of the National Council as the ‘National Home’ of the Jewish people. The declaration of independence also laid the foundations to ensure that it will be a Jewish state with a democratic government. The new state-law reiterates the same objective put forth at that time.  

Another member of the academia, Professor Eugene Kontorovich, in his article, went on to compare Israel’s nation state draft to that of the states of the European Union. He concludes that there is nothing racist or unusual about having the religious or national character reflected in basic laws. Quoting the example of seven nations of the EU whose constitution provides for the state being the national home and locus of self-determination for the country’s major ethnic group, he sees no reason for the rising concern about this law.[17]

Analysis

“The tragedy of the people of Palestine is that their country was ‘given’ by a foreign power to another people for the creation of a new state.”

— Bertrand Russell, 1970

This statement sums up the views of the Arab nations and rest of the world regarding the formation of a Jewish state. The newly introduced state-law of Israel further strengthens their views on the matter. The Arabs in the region assert that Jews are ‘another people’ and don’t belong to the region of Palestine. However, the fact that Jews were ousted from their ‘promised land’ by foreign rulers (who eventually settled there and called it their home) cannot be negated.

By the Balfour Declaration, the land of Palestine was promised to Jews in general, and not the Jewish settlers in that region. While the Jews migrated from across the globe to the newly formed territory, the Arab settlers in that region were deprived of their right of self determination; their land was given away to another religious community without any consultation with their representatives. This was an incident of suppression of the right to self determination.

Another such incidence of breach of this right took place recently when the nation-state law was passed by Israel, the only difference being that this was done at the intra-state level.

Permanence of Law

The law grants the right to self determination exclusively to the Jewish majority in the state of Israel, thereby depriving the minority population of Israeli Arabs of this right. The fact that this law is a part of the set of basic laws is very alarming. The basic laws in Israel are similar to the Indian concept of basic structure. These are considered to be a fundamental part of the national legal system, a guiding force, just like the Constitution of the country. Since these are so rudimentary and vital for the legal system to function properly, they cannot be repealed easily. The government needs the assent of the majority in the Knesset to repeal such laws and replace them with other laws.

Effect on Minority Rights

After having established the likelihood of permanency of the law, it is important to note the impact of this law on Arabic minority.

In any legal system, one can claim a right only if it can be traced back to the grund norm or the Constitution of that country. In cases where such a right cannot be attributed to the Constitution, one tries to trace it to the principles of natural justice. However, principles of natural justice can be successfully invoked only if the law doesn’t ban them exclusively.

It is evident from the text of the law that non-Jewish population will not have a say in choosing the principles which govern them. Since the majority can now ‘lawfully’ carry out any act of self determination, it is very likely that such act may be used to deprive the minority of their other rights in the near future. Further, since such an act will be backed by the law, there will not be any scope to invoke natural justice. Thus, the non-Jewish communities will even lose their right to protest against the laws applying to them.

This will be an explicit breach of minority rights done using the instrument of ‘law’.

Status of Jerusalem

The law declares ‘undivided’ Jerusalem as the capital of the state of Israel. This is another bone of contention between Israel and Palestine.

The status of Jerusalem is disputed. While both the states claim Jerusalem as their capital city, according to the United Nations Partition Plan for Palestine[18], Jerusalem was to be established as a corpus separatum or a separate body having an international status. While this plan could never materialise, the international community have taken up different stands with respect to this issue.

According to a statement issued by the Russian Ministry of Foreign Affairs, Russia recognises East Jerusalem as the capital of Palestine and West Jerusalem as the capital of Israel.[19]The United States of America under President Donald Trump, has recognised Jerusalem as the capital of Israel.[20]Soon after this the U.N. General Assembly voted to denounce this recognition of Jerusalem by U.S.A. as null and void and it was declared so by an overwhelming majority of 128-9.[21]

Conclusion

“Self determination is loaded with dynamite.”

Rightly observed by the U.S. Secretary of State Stanton, the principle of self determination needs practical guidelines for it to be used in a more responsible way. However, it is true that self determination is the need of the hour as the modern world conflicts are more about intra-state issue; Syrian crisis, Israel- Palestinian issue are some examples.

To resolve these issues, there needs to be a principle which limits the application of the principle of self determination. More focus should be given to intra-state autonomy as a form of limited self determination. It is an alternative self-determination arrangement, short of succession and seems to be the most feasible alternative.[22]

Further, there is an ongoing debate about various aspects of the right of self determination. The air over the meaning and significance of the principle of self determination hasn’t been cleared yet. Debates are still going on among members of academia on various issues like: What is self determination? What are the requirements which need to be fulfilled to achieve this right? Is it merely a political principle or can it be used as a tool for establishing law? How and to whom does it apply?

References

Articles

1. “Druze IDF officers protest against Nationality Law”, Ynetnews……………………………………………….. 11
2. “Israel passes Jewish nation law branded ‘racist’ by critiques”, The Independent……………………… 11
3. “Israel passes Jewish nation law; branded ‘racist’ by critics”, The Independent…………………………. 12
4. “Israeli Minister Explains Why He Led the Effort to Pass the Nation-State Law”, Haaretz……….. 11
5. AP, UN denounces US recognition of Jerusalem as Israeli capital, 22 December, 2017……………… 16
6. Dubi Helman and Adi Arbel, “The State of Israel as the National Home of the Jewish People”, The Institute for Zionist Strategies……………………………………………………………………………………………………………………………………… 12
7. Eugene Kontorovich, “The legitimacy of Israel’s nation-state bill (I): Comparative Constitutionalism”, Kohelet Forum, December, 2014…………………………………………………………………………………………………………………………… 13
8. Harriet Sherwood, What does U.S. recognition of Jerusalem as Israel’s capital mean?, 6 December, 2017. 16
9. Paul Goldman, Lawahez Jabari and F. Brinley Bruton, “Israel’s nation-sate law prompts criticism around the world, including from U.S. Jewish groups”, NBC News………………………………………………………………………… 11
10. Raphael Ahren, “In curious first, Russia recognizes Weat Jerusalem as Israel’s capital”, 6 April, 2017. 16

Decisions of the International Court of Justice

11. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I. C. J. Reports 2004, p. 136……………………………………………………………………………………………………………………… 5

Other Authorities

12. Full text of Basic Law: Israel as the Nation State of the Jewish People (PDF), The Knesset: Laws. State of Israel 10
13. https://israelipalestinian.procon.org/view.timeline.php?timelineID=000031………………………………… 8

Treatises

14. Allen Buchnan, Justice, Legitimacy, and Self-Determination, Oxford University Press at p. 342. 17
15. James Crawford, Brownlie’s Principles of Public International Law, Oxford University Press, 8^th edition at p. 646………………………………………………………………………………………………………………………………………………………… 4
16. James Crawford, Brownlie’s Principles of Public International Law, Oxford University Press, 8^th edition at p. 647………………………………………………………………………………………………………………………………………………………… 2
17. Jörg Fisch, A History of the Self-Determination of Peoples: The Domestication of an Illusion, Cambridge University Press, 1^st edition, 2015 at p.118……………………………………………………………………………………………………… 3

United Nations General Assembly Resolutions

18. Declaration on the Granting of Independence to Colonial Countries and Peoples, Adopted by General Assembly resolution 1514 (XV) of 14 December 1960………………………………………………………………………………….. 4
19. GA Res 1514(XV), 14 December, 1960…………………………………………………………………………………………. 2
20. Resolution 181, UNGA………………………………………………………………………………………………………………… 16

Endnotes

[1] James Crawford,  Brownlie’s Principles of Public International Law, Oxford University Press, 8^th edition at p. 647.

[2] GA Res 1514(XV), 14 December, 1960.

[3] Jörg Fisch, A History of the Self-Determination of Peoples: The Domestication of an Illusion, Cambridge University Press, 1^st edition, 2015 at p.118.

[4] Ibid

[5] James Crawford,  Brownlie’s Principles of Public International Law, Oxford University Press, 8^th edition at p. 646.

[6] Declaration on the Granting of Independence to Colonial Countries and Peoples, Adopted by General Assembly resolution 1514 (XV) of 14 December 1960.

[7] Ibid.

[8] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I. C. J. Reports 2004, p. 136

[9] See here:  https://israelipalestinian.procon.org/view.timeline.php?timelineID=000031

[10] Full text of Basic Law: Israel as the Nation State of the Jewish People (PDF), The Knesset: Laws. State of Israel.

See here: https://knesset.gov.il/laws/special/eng/BasicLawNationState.pdf

[11] Paul Goldman, Lawahez Jabari and F. Brinley Bruton, “Israel’s nation-sate law prompts criticism around the world, including from U.S. Jewish groups”, NBC News.

See here: https://www.nbcnews.com/news/world/israel-nation-state-law-prompts-criticism-around-world-n893036

[12] “Israel passes Jewish nation law branded ‘racist’ by critiques”, The Independent. 

See here: https://www.independent.co.uk/news/world/middle-east/israel-jewish-nation-state-law-passed-arabs-segregation-protests-benjamin-netanyahu-a8454196.html

[13] “Israeli Minister Explains Why He Led the Effort to Pass the Nation-State Law”, Haaretz.

See here: https://www.haaretz.com/israel-news/.premium-israeli-minister-explains-why-he-fought-to-pass-nation-state-law-1.6358737

[14]“Druze IDF officers protest against Nationality Law”, Ynetnews.

See here: https://www.ynetnews.com/articles/0,7340,L-5316576,00.html

[15] “Israel passes Jewish nation law; branded ‘racist’ by critics”, The Independent.

See here: https://www.independent.co.uk/news/world/middle-east/israel-jewish-nation-state-law-passed-arabs-segregation-protests-benjamin-netanyahu-a8454196.html

[16] Dubi Helman and Adi Arbel, “The State of Israel as the National Home of the Jewish People”, The Institute for Zionist Strategies. 

See here: http://izs.org.il/2015/12/jewish-national-home/

[17] Eugene Kontorovich, The legitimacy of Israel’s nation-state bill (I): Comparative Constitutionalism, Kohelet Forum, December, 2014.

See here: https://en.kohelet.org.il/publication/the-legitimacy-of-israels-nation-state-bill-i-comparative-constitutionalism

[18] Resolution 181, UNGA.

[19] Raphael Ahren, “In curious first, Russia recognizes Weat Jerusalem as Israel’s capital”, 6 April, 2017.

See here: https://www.timesofisrael.com/in-historic-first-russia-recognizes-west-jerusalem-as-israels-capital/

[20] Harriet Sherwood, “What does U.S. recognition of Jerusalem as Israel’s capital mean?”, 6 December, 2017.

See here: https://www.theguardian.com/world/2017/dec/06/us-recognition-of-jerusalem-as-israel-capital-what-it-means

[21] AP, UN denounces US recognition of Jerusalem as Israeli capital, 22 December, 2017.

See here: https://www.thehindu.com/news/international/un-denounces-us-recognition-of-jerusalem-as-israeli-capital/article22216682.ece

[22] Allen Buchnan, Justice, Legitimacy, and Self-Determination, Oxford University Press at p. 342.

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 skill.

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